Assistance of Counsel.

Generally, ineffective assistance of counsel claims are most effectively presented in proceedings for post-conviction relief pursuant to chapter 29-32.1. However, when defective assistance of counsel is urged on direct appeal, supreme court will review the entire record, and if it cannot readily determine that assistance of counsel was plainly defective and there exist no other grounds for reversal, then defendant can later pursue his claim at a post-conviction proceeding where an adequate record can be developed. State v. Sayler, 443 N.W.2d 915, 1989 N.D. LEXIS 148 (N.D. 1989).

Attendance of Witnesses.

If witness is necessary to proper presentation of defendant’s case, defendant should see that witness is called; failure of state to call witness whose name was endorsed on amended information was not error since defense could have subpoenaed that witness. State v. Henderson, 156 N.W.2d 700, 1968 N.D. LEXIS 112 (N.D. 1968).

Confrontation of Witnesses.

A hearing on a motion to suppress evidence is a critical stage of the prosecution and the Confrontation Clause of the Sixth Amendment of the United States Constitution guarantees an accused the right to confront witnesses against him at such hearing. State v. Mondo, 325 N.W.2d 201, 1982 N.D. LEXIS 343 (N.D. 1982), overruled in part, State v. Woinarowicz, 2006 ND 179, 720 N.W.2d 635, 2006 N.D. LEXIS 181 (N.D. 2006).

Although responses given by nine-year-old victim of sexual offense did not specifically answer the questions asked by the defendant, those responses did not constitute a denial of the defendant’s right to confront the witness; rather, those responses raised a credibility issue to be resolved by the trier of fact. State v. Jenkins, 326 N.W.2d 67, 1982 N.D. LEXIS 331 (N.D. 1982).

Exclusion of the forensic analyst’s testimony based on defendant’s acquiescence to admission of the chemical test results was contrary to N.D.C.C. § 39-20-07 and the refusal to allow the analyst to testify was unreasonable and warranted a new trial. While defendant admitted to drinking and smelled of alcohol, there was little evidence indicating that he was under the influence of intoxicating liquor and thus, exclusion of the testimony was not harmless. State v. Schwab, 2008 ND 94, 748 N.W.2d 696, 2008 N.D. LEXIS 91 (N.D. 2008).

Jury Trial.

Defendant was denied his right to a jury trial where he was tried by court and record did not reveal that defendant expressly and intelligently consented to waiver of his right to a jury trial; when a written waiver is not submitted, a trial court could eliminate doubt and safeguard rights of a defendant by obtaining an express statement of defendant specifically indicating on record that a jury trial is or is not waived. State v. Kranz, 353 N.W.2d 748, 1984 N.D. LEXIS 334 (N.D. 1984).

Place of Trial.

The right of criminal defendant to a trial in the county of the alleged offense, as stated in subsection 5, is subject to the mandatory change of venue on the filing of an affidavit of prejudice against a county justice. State ex rel. Herreid v. Walter, 130 N.W.2d 313, 1964 N.D. LEXIS 133 (N.D. 1964).

Right to Counsel.

Where defendant appeared in district court and stated that he knew he was entitled to counsel, that he did not want to be represented, that he desired to plead guilty, and there was no showing that he was influenced by any threats or promises, he was not deprived of his right to counsel. State ex rel. Johnson v. Broderick, 75 N.D. 340, 27 N.W.2d 849, 1947 N.D. LEXIS 72 (N.D. 1947).

The defendant’s written request that the court either move his trial date forward to accommodate his attorney’s absence, appoint another attorney, or allow him to represent himself was actually a request for hybrid representation, or the ability to participate as co-counsel with his attorney. State v. Ochoa, 2004 ND 43, 675 N.W.2d 161, 2004 N.D. LEXIS 57 (N.D. 2004).

The defendant’s written request that the court either move his trial date forward to accommodate his attorney’s absence, appoint another attorney, or allow him to represent himself was not an unequivocal waiver of his right to counsel and the trial court did not commit error in denying his right to self-representation as any ambiguity had to be resolved against waiver. State v. Ochoa, 2004 ND 43, 675 N.W.2d 161, 2004 N.D. LEXIS 57 (N.D. 2004).

Speedy Trial.

Where state filed warrant of arrest as detainer against accused imprisoned in neighboring state prison and made reasonable efforts in good faith to extradite him for trial, accused’s petition to withdraw the detainer because he had not been granted speedy trial was dismissed, since delay was caused by inaction of neighboring state officials and not bad faith or lack of diligence by North Dakota officials. Morris v. McGee, 180 N.W.2d 659, 1970 N.D. LEXIS 125 (N.D. 1970).

A plea of guilty constitutes a waiver of the right to a speedy trial. State v. Wunderlich, 338 N.W.2d 658, 1983 N.D. LEXIS 351 (N.D. 1983).

Conclusory allegations of an impaired defense from a delayed trial do not prove prejudice. State v. Murchison, 541 N.W.2d 435, 1995 N.D. LEXIS 233 (N.D. 1995).

Actual prejudice to defendant from delay was not apparent where he was in jail for separate convictions much of the time before his trial; almost seven months of his incarceration was unrelated to the case at bar, and “oppressive pretrial incarceration” did not occur. State v. Murchison, 541 N.W.2d 435, 1995 N.D. LEXIS 233 (N.D. 1995).

Defendant was not denied his right to a speedy trial where his attempts to invoke Interstate Agreement on Detainers did not constitute a proper request for a speedy trial, much of the delay was attributable to motions filed by the defendant, and the defendant did not demonstrate that his ability to defend against charges was impaired by the delay. State v. Moe, 1998 ND 137, 581 N.W.2d 468, 1998 N.D. LEXIS 147 (N.D. 1998).

Defendant’s right to a speedy trial was not violated where he failed to inform the district court of his change of address when he was transported from another county, failed to object when hearings were rescheduled, failed to request immediate disposition of the charges during his preliminary hearings, and failed to follow the procedural requirements of the Uniform Mandatory Disposition of Detainers Act, N.D.C.C. ch. 29-33. State v. Johnson, 1999 ND 33, 590 N.W.2d 192, 1999 N.D. LEXIS 35 (N.D. 1999).

Defendant was not denied his right to speedy trial where, although eight months passed between the date of defendant’s arrest and the commencement of his trial, considering the appointments of counsel and various intervening motions that were filed, defendant’s actions reasonably attributed to the delay and there was no actual prejudice to him by the delay. State v. Ochoa, 2004 ND 43, 675 N.W.2d 161, 2004 N.D. LEXIS 57 (N.D. 2004).

Although the defendant’s trial was delayed for about two years, there was no evidence that the State purposefully delayed the trial, and defendant moved to suppress evidence from the searches about 400 days after pre-trial motions were due; defendant did not satisfy the appellate court that his speedy trial rights were violated by the delay in bringing his case to trial. State v. Bergstrom, 2004 ND 48, 676 N.W.2d 83, 676 N.W.2d 98, 2004 N.D. LEXIS 61 (N.D. 2004).

Fifteen-month delay between defendant’s arrest and his trial did not violate his right to a speedy trial under the Sixth Amendment and N.D.C.C. § 29-01-06(5) because the primary reason for the delay was defendant’s dissatisfaction with his attorneys, which resulted in multiple changes of court-appointed counsel and delays. Defendant also sought multiple continuances. State v. Fischer, 2008 ND 32, 744 N.W.2d 760, 2008 N.D. LEXIS 21 (N.D. 2008).

Because defendant had a right to a speedy trial and was presumed innocent, his continued pretrial detention at the State Hospital had to be determined under the statutory procedures and safeguards of N.D.C.C. ch. 25-03.1. State v. Holbach, 2014 ND 14, 842 N.W.2d 328, 2014 N.D. LEXIS 16 (N.D.), cert. denied, 574 U.S. 984, 135 S. Ct. 462, 190 L. Ed. 2d 347, 2014 U.S. LEXIS 7253 (U.S. 2014).

Defendant was not deprived of his speedy trial rights under the United States or North Dakota Constitutions because the reason for the delay was precipitated by defendant's act of effectively firing his first counsel; the extent of the delay involved reasonable scheduling considerations for an anticipated five-day jury trial and the designation of a second court-appointed counsel. State v. Owens, 2015 ND 68, 860 N.W.2d 817, 2015 N.D. LEXIS 66 (N.D. 2015).

Defendant’s right to a speedy trial was not violated because the eight month delay did not trigger the presumption of prejudice, the reason for delay was the unavailability of a witness, and the district court found there to be no evidence of bad faith on the part of the State in the underlying motion to dismiss without prejudice. State v. Abdiwali Mohamud, 2019 ND 101, 925 N.W.2d 396, 2019 N.D. LEXIS 109 (N.D. 2019).

Taking Testimony Outside Courtroom.

No substantial right of defendant was affected where the testimony of a witness was taken at a hospital in the county seat where the trial was being conducted, before the court and jury and in the presence of defendant and his counsel. State v. Tracy, 34 N.D. 498, 158 N.W. 1069, 1916 N.D. LEXIS 47 (N.D. 1916).

Collateral References.

Duty to advise accused of right to assistance of counsel, 3 A.L.R.2d 1003.

Absence of accused during making of tests or experiments as affecting admissibility of testimony concerning them, 17 A.L.R.2d 1078.

Fingerprint, palm print, or bare footprint evidence as violating privilege of accused of confront witnesses, 28 A.L.R.2d 1115, 1136.

Revocation, without notice and hearing, of probation or suspension of sentence, parole, or conditional pardon as a deprivation of right to counsel, 29 A.L.R.2d 1074.

Right of defendant to counsel upon examination under statute providing for psychiatric examination of accused to determine mental condition, 32 A.L.R.2d 434, 444.

Claim of privilege by a witness as justifying the use in criminal case of his testimony given on former trial or preliminary examination, 45 A.L.R.2d 1354.

Right to presence of counsel at polling of jury, 49 A.L.R.2d 619.

Waiver or loss of accused’s right to speedy trial, 57 A.L.R.2d 302, 339.

Criminal trial of deaf, mute, or blind person, 80 A.L.R.2d 1084.

Effect of, and remedy for, infringement of right of accused to communicate with his attorney, 5 A.L.R.3d 1360.

Suppression of evidence by prosecution in criminal case as vitiating conviction, 34 A.L.R.3d 16.

Right of accused to have evidence or court proceedings interpreted, 36 A.L.R.3d 276.

Propriety of requiring criminal defendant to exhibit self, or perform physical act, or participate in demonstration, during trial and in presence of jury, 3 A.L.R.4th 374.

Right of accused to be present at suppression hearing or at other hearing or conference between court and attorneys concerning evidentiary questions, 23 A.L.R.4th 955.

Validity of jury selection as affected by accused’s absence from conducting of procedures for selection and impaneling of final jury panel for specific case, 33 A.L.R.4th 429.

Application of speedy trial statute to dismissal or other termination of prior indictment or information and bringing of new indictment or information, 39 A.L.R.4th 899.

Admissibility of bare footprint evidence, 45 A.L.R.4th 1178.

Exclusion of public from state criminal trial in order to prevent disturbance by spectators or defendant, 55 A.L.R.4th 1170.

Relief available for violation of right to counsel at sentencing in state criminal trial, 65 A.L.R.4th 183.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in criminal matters as ground for disciplinary action — modern cases, 69 A.L.R.4th 410.

Exclusion of public from state criminal trial by conducting trial or part thereof at other than regular place or time, 70 A.L.R.4th 632.

Right of party to have attorney or physician present during physical or mental examination at instance of opposing party, 84 A.L.R.4th 558.

Examination and challenge of state case jurors on basis of attitudes toward homosexuality,80 A.L.R.5th 469.

Determination of Request for Exclusion of Public from State Criminal Trial in Order to Preserve Safety, Confidentiality, or Well-Being of Witness Who Is Not Undercover Police Officer — Issues of Proof, Consideration of Alternatives, and Scope of Closure, 32 A.L.R.6th 171.

Basis for Exclusion of Public from State Criminal Trial in Order to Preserve Safety, Confidentiality, or Well-Being of Witness Who Is Not Undercover Police Officer, 33 A.L.R.6th 1.

Law Reviews.

Article: The Law Of Unintended Consequences: The North Dakota Supreme Court Recognizes the Right to a Jury Trial for Noncriminal Traffic Offenses in Riemers v. Eslinger, see 86 N.D. L. Rev. 505.

Appeal by Defendant.

Double jeopardy protection did not prohibit retrial of a defendant where he appealed and his conviction was reversed on appeal because he had been denied his right to a jury trial. State v. Kranz, 353 N.W.2d 748, 1984 N.D. LEXIS 334 (N.D. 1984).

Discharge of Jury

Double jeopardy barred further prosecution of defendant on a gross sexual imposition charge because jeopardy had attached when the jury was empaneled and sworn and then was discharged from the case by the trial court on its own motion. Discharging the jury was not manifestly necessary even though it was done for the benefit of defendant, who had requested that an attorney be appointed to represent him. State v. Voigt, 2007 ND 100, 734 N.W.2d 787, 2007 N.D. LEXIS 96 (N.D. 2007).

Double Jeopardy Not Found.

—In General.

A non-criminal charge of exhibition driving and a later criminal charge of driving under the influence does not place a defendant in double jeopardy. City of Fargo v. Hector, 534 N.W.2d 821, 1995 N.D. LEXIS 125 (N.D. 1995).

Juvenile’s double jeopardy rights, U.S. Const. amend. V, N.D. Const. art. I, § 12, N.D.C.C. § 29-01-07, were not violated by the juvenile court’s adjudication of delinquency premised on evidence of same conduct which formed the basis of the sanction imposed by the juvenile drug court. Ubben v. O.F. (In re O.F.), 2009 ND 177, 773 N.W.2d 206, 2009 N.D. LEXIS 190 (N.D. 2009).

Because the district court did not err in finding double jeopardy to be inapplicable, the district court did not err by denying defendant’s requested jury instruction and special verdict form seeking a jury finding on double jeopardy. State v. Borland, 2021 ND 52, 956 N.W.2d 412, 2021 N.D. LEXIS 47 (N.D. 2021).

—Civil Forfeiture Dismissed.

Where a civil forfeiture proceeding against defendant’s automobile was dismissed because it had not been instituted promptly, and there was no final administrative or judicial action against the property, even if the civil forfeiture proceeding was characterized as punitive rather than remedial, jeopardy did not attach to this civil forfeiture proceeding because it was dismissed before final action was taken against the property. State v. O'Rourke, 544 N.W.2d 384, 1996 N.D. LEXIS 49 (N.D. 1996).

—Mistrial

Double jeopardy did not bar defendant’s second jury trial where first jury failed to reach a unanimous decision and a mistrial was declared after two and a half hours of deliberation; fact that prosecution learned of a particular item of evidence that had confused the jury at the first trial and sought to address the deficiency in the evidence at the second trial did not mandate double jeopardy bar as this was not the type of benefit to the State that would implicate the double jeopardy clause and, although the time of the deliberations was short, given the depth of the jury’s division and the resultant threat it posed to an impartial verdict, the trial judge acted within the confines of his discretion, manifest necessity, and the ends of public justice in declaring a mistrial. State v. Linghor, 2004 ND 224, 690 N.W.2d 201, 2004 N.D. LEXIS 364 (N.D. 2004).

Defendant’s retrial was not barred by double jeopardy because her motion for mistrial precluded double jeopardy from applying; defendant had not established the city’s conduct in asking a general question of a police officer goaded or provoked her into moving for the mistrial because the police officer was the city’s first witness early in the trial, and it had no reason to provoke a mistrial at that early stage. City of W. Fargo v. Le Ekstrom, 2020 ND 37, 938 N.W.2d 915, 2020 N.D. LEXIS 35 (N.D. 2020); 2020 N.D. LEXIS 3 (February 12, 2020).

Double jeopardy did not bar retrial following defendant’s first and second trials because the jury’s guilty verdict in the first trial was set aside at defendant’s insistence after the discovery of juror misconduct, and thus, the State was entitled to retry the case; double jeopardy did not prohibit a retrial of defendant following the second trial because the district court granted his motion for mistrial after the jury communicated it could not reach a unanimous verdict. State v. Borland, 2021 ND 52, 956 N.W.2d 412, 2021 N.D. LEXIS 47 (N.D. 2021).

—Suspension of Driver’s License.

Under the United States Constitution and under the North Dakota Constitution, a criminal prosecution for DUI does not constitute double jeopardy even though the defendant’s driver’s license previously had been suspended in an administrative hearing for the same DUI offense. State v. Jacobson, 545 N.W.2d 152, 1996 N.D. LEXIS 63 (N.D. 1996).

Fifth Amendment Compared.

Framers of North Dakota constitution who created section dealing with double jeopardy and members of legislature who drafted this section and its predecessor did not intend a result different than that mandated by the fifth amendment to the United States Constitution.State v. Allesi, 216 N.W.2d 805, 1974 N.D. LEXIS 235 (N.D. 1974).

Mistrial Declared.

Where judge discovered after prosecution’s evidence was presented that four defendants had not been arraigned, and defendants refused to waive arraignment or enter plea, judge did not abuse his discretion in declaring mistrial and subsequently arraigning and trying defendants, and second trial did not constitute double jeopardy. State v. Berger, 235 N.W.2d 254, 1975 N.D. LEXIS 142 (N.D. 1975), cert. denied, 425 U.S. 913, 96 S. Ct. 1511, 47 L. Ed. 2d 764, 1976 U.S. LEXIS 880 (U.S. 1976).

Plea of Guilty and Judgment of Conviction.

Defendant was put in jeopardy by his plea of guilty and the judgment of conviction rendered upon such plea and the fact that the proceedings were erroneous and that the judgment rendered was voidable did not destroy its effectiveness as a bar to further prosecution. State ex rel. Johnson v. Thomson, 76 N.D. 125, 34 N.W.2d 80 (1948), decided prior to the adoption of N.D.R.Crim.P., Rule 21.

Preliminary Appearances.

Fact that defendant made a preliminary appearance before one judge in one county and a second preliminary appearance before another judge in another county did not violate his right against twice being placed in jeopardy because jeopardy does not attach in criminal proceedings until the defendant’s trial commences, which in a jury trial occurs when the jury is empaneled and sworn, and in a nonjury trial when the court begins to hear the evidence. State v. Jensen, 333 N.W.2d 686, 1983 N.D. LEXIS 269 (N.D. 1983).

Waiver.

Where accused moved for advised verdict of acquittal to which he was not entitled and trial court, instead, erroneously entered order of dismissal to which no objection was made by defendant, his right to assert the defense of double jeopardy was waived. State v. Allesi, 216 N.W.2d 805, 1974 N.D. LEXIS 235 (N.D. 1974).

Collateral References.

Conviction or acquittal in criminal prosecution as bar to action for seizure, condemnation, or forfeiture of property, 27 A.L.R.2d 1137.

Acquittal on homicide charge as bar to subsequent prosecution for assault and battery or vice versa, 37 A.L.R.2d 1068.

Conviction or acquittal in criminal prosecution as bar to action for statutory damages or penalty, 42 A.L.R.2d 634.

Discharge of accused for holding him excessive time without trial as bar to subsequent prosecution for same offense, 50 A.L.R.2d 943.

Conviction or acquittal of attempt to commit particular crime as bar to prosecution for conspiracy to commit same crime, or vice versa, 53 A.L.R.2d 622.

Conviction of lesser offense as bar to prosecution for greater on new trial, 61 A.L.R.2d 1141.

What constitutes accused’s consent to court’s withdrawal of case from jury so as to constitute waiver of plea of former jeopardy, 63 A.L.R.2d 782.

Conviction or acquittal in court having no jurisdiction to try offense as putting accused in jeopardy, 4 A.L.R.3d 874.

Subsequent trial, after stopping former trial to try accused for greater offense, as constituting double jeopardy, 6 A.L.R.3d 905.

Increased punishment on new trial for same offense, 12 A.L.R.3d 978.

Single or separate larceny predicated upon stealing property from different owners at same time, 37 A.L.R.3d 1407.

Nonjury trial, when jeopardy attaches in, 49 A.L.R.3d 1039.

Separation of jury in criminal case before introduction of evidence—modern cases, 72 A.L.R.3d 100.

Separation of jury in criminal case during trial—modern cases, 72 A.L.R.3d 131.

Separation of jury in criminal case after submission of cause—modern cases, 72 A.L.R.3d 248.

Acquittal as bar to a prosecution of accused for perjury committed at trial, 89 A.L.R.3d 1098.

Former jeopardy as bar to retrial of criminal defendant after original trial court’s sua sponte declaration of a mistrial — state cases, 40 A.L.R.4th 741.

Double jeopardy: various acts of weapons violations as separate or continuing offense, 80 A.L.R.4th 631.

Seizure or detention for purpose of committing rape, robbery, or other offense as constituting separate crime of kidnapping, 39 A.L.R.5th 283.

Law Reviews.

Statutory Bars to Dual Sovereign Prosecutions: The Minnesota and North Dakota Approaches Compared, 72 N.D. L. Rev. 583 (1996).

Protection Orders.

Municipal court judge was immune from civil liability with regard to issuance of a protection order where order was issued in accordance with jurisdictional requirements of N.D.C.C. § 14-07.1-08. Patten v. Beauchamp, 599 F. Supp. 288, 1984 U.S. Dist. LEXIS 21262 (D.N.D. 1984).

Small Claims Court Referee Designated As Magistrate.

Small claims court referee designated magistrate lacks jurisdiction to adjudicate class B misdemeanors; jurisdiction under this section is limited to acting as a committing magistrate. State v. Sadowski, 331 N.W.2d 274, 1983 N.D. LEXIS 254 (N.D. 1983).

Collateral References.

Criminal jurisdiction of municipal or other local court, 102 A.L.R.5th 525.

Law Reviews.

Article: The Law Of Unintended Consequences: The North Dakota Supreme Court Recognizes the Right to a Jury Trial for Noncriminal Traffic Offenses in Riemers v. Eslinger, see 86 N.D. L. Rev. 505.

Construction.

This section and this title apply primarily to appeals by an accused and should be liberally construed to the end that an accused receives justice; provisions of this title should be strictly construed against the state. State v. Mees, 196 N.W.2d 399, 1972 N.D. LEXIS 172 (N.D. 1972).

Liberal Interpretation.

Penal statutes are to be given a liberal interpretation with a view of promoting the object of the statute, and in furtherance of justice. Timm v. State, 110 N.W.2d 359, 1961 N.D. LEXIS 86 (N.D. 1961).

Attempted Theft Based on Filing False Insurance Claim.

Where defendant was charged with attempted theft by filing a false insurance claim for a stolen automobile, which was in fact found burned in Renville County, venue was proper in Ward County where the alleged crime, or at least a part of the alleged crime was committed, if committed at all, in that defendant contacted his father from Ward County to file the alleged false insurance claim. State v. York, 326 N.W.2d 208, 1982 N.D. LEXIS 381 (N.D. 1982).

Defrauding a Secured Creditor.

Where defendant was charged with defrauding a secured creditor in violation of N.D.C.C. § 12.1-23-08 on basis that he sold collateral securing debt and failed to apply proceeds to debt, venue was proper in Burleigh County where, although sales took place outside Burleigh County, collateral was kept in Burleigh County, was loaded in Burleigh County for shipment for sale, discussions between creditor and defendant about applying proceeds to debt occurred in Burleigh County, and defendant cashed sale check in Burleigh County. State v. Patten, 353 N.W.2d 26, 1984 N.D. LEXIS 336 (N.D. 1984).

Evidence Sufficient.

Evidence held sufficient to support the jury’s finding that the murder occurred in the county in which the defendant was prosecuted. State v. Kunkel, 548 N.W.2d 773, 1996 N.D. LEXIS 153 (N.D. 1996).

Formation of Intent.

Where there was evidence that defendant formed intent in Burleigh County to remove his children from North Dakota, beginning journey to Oregon and Montana by taking the children out of Burleigh County, intent being “requisite to the consummation of” the offense of removing his children “outside North Dakota with the intent to deny another person’s rights under an existing custody decree,” defendant could properly be convicted in Burleigh County of violating former section 14-14-22.1. State v. Rathjen, 455 N.W.2d 845, 1990 N.D. LEXIS 110 (N.D. 1990).

Furtherance of a Crime.

An act in furtherance of the crime that occurs in a county confers jurisdiction for trial of that crime in that county. State v. Martinsons, 462 N.W.2d 458, 1990 N.D. LEXIS 232 (N.D. 1990).

Gambling Transactions.

In a prosecution for gambling, where the defendant’s statement indicated that, while he was working in Beulah (which is in Mercer County), he placed and accepted bets and passed the proceeds on to a man known as “Chief,” and a witness who personally engaged in gambling transactions with the defendant testified that he obtained line sheets from the defendant which he then used to solicit wagers from coworkers in Oliver County, and he later turned the bets over to the defendant, who paid him for his services, the defendant’s written statement that he met “Chief” while working in Beulah and that he placed wagers for others which he then turned over to “Chief” supported a reasonable inference that part of the gambling transactions took place in Beulah. Therefore, venue in Mercer County was proper. State v. Rasmussen, 365 N.W.2d 481, 1985 N.D. LEXIS 280 (N.D. 1985).

Obtaining Money by False Pretenses.

Where a signature to a check was obtained by false pretenses in one county and the check cashed in another, the crime of obtaining money by false pretenses was committed, in part, in the county where the check was cashed. State v. Hastings, 77 N.D. 146, 41 N.W.2d 305, 1950 N.D. LEXIS 114 (N.D. 1950).

When Crime Committed.

Generally a crime is committed in a county when the criminal act, its object and purpose, is completed within that county. State v. Robinson, 71 N.D. 463, 2 N.W.2d 183, 1942 N.D. LEXIS 80 (N.D. 1942).

Collateral References.

Libel in newspaper, venue of criminal prosecution for, 15 A.L.R.3d 1249.

Venue in homicide cases where crime is committed partly in one county and partly in another, 73 A.L.R.3d 907.

Venue in rape cases where crime is committed partly in one place and partly in another, 100 A.L.R.3d 1174.

Venue in bribery cases where crime is committed partly in one county and partly in another, 11 A.L.R.4th 704.

In General.

Expiration of the limitation period bars prosecution of a criminal charge. State v. Thill, 468 N.W.2d 643, 1991 N.D. LEXIS 71 (N.D. 1991).

Amendment Applicable.

Defendant contended that the three-year statute of limitations barred his conviction on seven of the nine counts alleged in the information, because the transactions involved in those counts were alleged to have occurred more than three years before the informations were filed. Relying on an amendment to this section, the State responded that the prosecutions for those seven counts were within the three-year statute of limitations. The 1987 amendment to this section was applicable to the case, since statutes enacted by the legislature are to be applied prospectively, the conduct in the case occurred before the 1987 amendment to this section, and the legislature did not clearly express retroactive application of that amendment. State v. Hersch, 445 N.W.2d 626, 1989 N.D. LEXIS 160 (N.D. 1989).

Application of Prior Law.

The pre-1987 statute of limitation period of this section would apply to a theft which occurred in October, 1986. State v. Dimmler, 456 N.W.2d 297, 1990 N.D. LEXIS 122 (N.D. 1990).

Under this section as it read prior to 1987 amendment, an information or indictment must be filed within three years after the commission of the alleged offense. State v. Dimmler, 456 N.W.2d 297, 1990 N.D. LEXIS 122 (N.D. 1990).

Demurrer to Information.

The expiration of the period of limitation for the prosecution of an offense is a legal bar to the prosecution and, where it appears from the information that the bar exists, that fact is a ground for demurrer. State v. Thomas, 72 N.D. 537, 9 N.W.2d 442, 1943 N.D. LEXIS 89 (N.D. 1943).

Failure to Pay Child Support.

Prosecution for willful failure to pay child support in violation of N.D.C.C. § 12.1-37-01 was not time-barred because the plain language of N.D.C.C. § 12.1-37-01 authorized a prosecution for willful failure to pay not only orders for current support, but also child support arrearages. State v. Nastrom, 2008 ND 110, 750 N.W.2d 432, 2008 N.D. LEXIS 106 (N.D. 2008).

Instruction on Theft by Deception.

Where jury was not instructed that the State must prove by a preponderance of evidence that the theft by deception occurred within the applicable statute of limitations, and where evidence, viewed in the light most favorable to defendant, was that he both knowingly obtained and intentionally deprived others of property by deception before the date the statute of limitations commenced, failure to instruct the jury on that issue was obvious error and defendant was entitled to a new trial with appropriate instructions. State v. Hersch, 445 N.W.2d 626, 1989 N.D. LEXIS 160 (N.D. 1989).

Jurisdictional Fact.

Where defendant argued that the three-year statute of limitations barred his prosecution, and where defendant did not raise the issue at the trial court level, defendant did not waive the issue, and it was noticed for the first time on appeal; statute of limitations in a criminal case was a jurisdictional fact which created a bar to prosecution. State v. Hersch, 445 N.W.2d 626, 1989 N.D. LEXIS 160 (N.D. 1989).

Retroactive Application of Amendments.

A review of the legislative history of the 1985, 1987, and 1993 amendments allowed the supreme court to rationally infer that the legislature intended retroactive application of each extension of the statute of limitations; the court discerned a legislative intent to apply the amendments to existing offenses, not merely future ones. State v. Davenport, 536 N.W.2d 686, 1995 N.D. LEXIS 151 (N.D. 1995).

Collateral References.

Conviction of lesser offense, against which statute of limitations has run, where statute has not run against offense with which defendant is charged, 47 A.L.R.2d 887.

Application of statute of limitations to criminal false pretense action based on false statement as to existing encumbrance on chattel made to obtain loan or credit, 53 A.L.R.2d 1215.

Conspiracy, when does statute of limitations begin to run against criminal prosecution for, 62 A.L.R.2d 1369.

Finding or return of indictment, or filing of information, as tolling limitation period, 18 A.L.R.4th 1202.

Waivability of bar of limitations against criminal prosecution, 78 A.L.R.4th 693.

Creates Bar to Prosecution.

This section is not a statute of repose, but creates a bar to the prosecution, and the time within which an offense is committed becomes a jurisdictional fact. State v. Tennyson, 73 N.D. 259, 14 N.W.2d 171, 1944 N.D. LEXIS 58 (N.D. 1944).

Instruction As to Time of Offense.

It is not error to instruct a jury, in a prosecution for a continuing offense, that proofs would be sufficient if they showed to the jury’s satisfaction that the offense was committed at any date between the dates set out in the information, and within two years prior to the filing of the information. State v. McCauley, 68 N.D. 198, 277 N.W. 605, 1938 N.D. LEXIS 97 (N.D. 1938).

State Has Burden of Proof.

The state has the burden of proving affirmatively the commission of an offense charged within the period limited for its prosecution. State v. Tennyson, 73 N.D. 259, 14 N.W.2d 171, 1944 N.D. LEXIS 58 (N.D. 1944).

Collateral References.

Waivability of bar of limitations against criminal prosecution, 78 A.L.R.4th 693.

In General.

The 1985 enactment created a specific, separate time limit for prosecuting a charge of sexual abuse of a child. State v. Thill, 468 N.W.2d 643, 1991 N.D. LEXIS 71 (N.D. 1991).

Applicability.

Defendant’s conviction for gross sexual imposition was upheld because the court did not err in applying the 1993 version of N.D.C.C. § 29-04-03.1 to the claims against defendant; because there was no time when the statute of limitations against defendant had expired, defendant had no ex post facto claim regarding the application of the 1993 version of § 29-04-03.1 to acts occurring in 1990 or 1991. State v. Buchholz, 2004 ND 77, 678 N.W.2d 144, 2004 N.D. LEXIS 179 (N.D. 2004).

Charges based on the sexual abuse of defendant’s young nephew were not barred by the statute of limitations; because the nephew was under 15 at the time of the offense, the statute of limitations did not begin to run until his 15th birthday in 1997, he did not report the offense to law enforcement until January 31, 2005, therefore, the prosecution had to be commenced within three years after that date, and the State filed a criminal complaint against defendant in June 2005, well within the three-year limitation period. State v. Goebel, 2007 ND 4, 725 N.W.2d 578, 2007 N.D. LEXIS 2 (N.D. 2007).

Charges based on the sexual abuse of defendant’s young niece were not barred by the statute of limitations; the district court correctly applied the current version of N.D.C.C. § 29-04-03.1, and, because the victim was under 15 at the time of the sexual abuse, the statute of limitations did not begin to run until her 15th birthday in 2002. The offense was reported to law enforcement authorities in December 2002, within the initial seven-year limitation period, and the prosecution was commenced within seven years. State v. Goebel, 2007 ND 4, 725 N.W.2d 578, 2007 N.D. LEXIS 2 (N.D. 2007).

Defendant was properly convicted of gross sexual imposition against a her son and stepson because the district court did not err in sentencing her in excess of the recommendations where defendant waived her factual argument by pleading guilty, the jury was properly instructed on the statute of limitations, the district court could consider the testimony at the earlier hearings regarding the date the offense was reported, defendant did not move withdraw her guilty plea, and the parties were aware the recommendation of sentence was nonbinding. State v. Berg, 2015 ND 61, 860 N.W.2d 829, 2015 N.D. LEXIS 57 (N.D. 2015).

Legislative Intent.

The legislative history of this section makes it clear that the legislature’s intention was to extend the time for prosecutions of sexual abuse of children. State v. Thill, 468 N.W.2d 643, 1991 N.D. LEXIS 71 (N.D. 1991).

The three-years-after-reporting language was intended to extend the limitation period beyond the seven years, especially in cases of repressed memory of childhood sexual abuse. State v. Davenport, 536 N.W.2d 686, 1995 N.D. LEXIS 151 (N.D. 1995).

Retroactive Application of Amendments.

A review of the legislative history of the 1985, 1987, and 1993 amendments allowed the supreme court to rationally infer that the legislature intended retroactive application of each extension of the statute of limitations; the court discerned a legislative intent to apply the amendments to existing offenses, not merely future ones. State v. Davenport, 536 N.W.2d 686, 1995 N.D. LEXIS 151 (N.D. 1995).

Applicability.

Charges based on the sexual abuse of defendant’s young niece were not barred by the statute of limitations; the district court correctly applied the current version of N.D.C.C. § 29-04-03.1, and, because the victim was under 15 at the time of the sexual abuse, the statute of limitations did not begin to run until her 15th birthday in 2002. The offense was reported to law enforcement authorities in December 2002, within the initial seven-year limitation period, and the prosecution was commenced within seven years. State v. Goebel, 2007 ND 4, 725 N.W.2d 578, 2007 N.D. LEXIS 2 (N.D. 2007).

Charges based on the sexual abuse of defendant’s young nephew were not barred by the statute of limitations; because the nephew was under 15 at the time of the offense, the statute of limitations did not begin to run until his 15th birthday in 1997, he did not report the offense to law enforcement until January 31, 2005, therefore, the prosecution had to be commenced within three years after that date, and the State filed a criminal complaint against defendant in June 2005, well within the three-year limitation period. State v. Goebel, 2007 ND 4, 725 N.W.2d 578, 2007 N.D. LEXIS 2 (N.D. 2007).

Description of Property.

A complaint in justice court charging a person with keeping and maintaining a nuisance “in a certain one-story frame building” in a certain village and county, without specifying the lot and block where kept, is a sufficient description upon which to base a preliminary examination. State v. Wisnewski, 13 N.D. 649, 102 N.W. 883, 1905 N.D. LEXIS 10 (N.D. 1905).

Statement of Facts Constituting Offense.

A criminal complaint, on preliminary hearing before the magistrate, need not state the facts constituting the offense with the same technical accuracy as an information. State v. Cook, 53 N.D. 429, 206 N.W. 786, 1925 N.D. LEXIS 105 (N.D. 1925).

In General.

The right to consult with an attorney before taking a chemical test is not derived from the state or federal constitutions, but from this section. State v. Sadek, 552 N.W.2d 71, 1996 N.D. LEXIS 183 (N.D. 1996).

Where defendant asserted the right to counsel prior to submitting to an on-site screening test (a test conducted prior to arrest, the results of which are not admissible as evidence for the ultimate determination of a violation of N.D.C.C. § 39-20-14), a statutory right to counsel did not exist given that defendant was not under arrest and the purpose of the test was only to determine whether there was probable cause to warrant an arrest. City of Mandan v. Leno, 2000 ND 184, 618 N.W.2d 161, 2000 N.D. LEXIS 201 (N.D. 2000).

Administrative License.

—Suspension Proceeding.

Constitutional protections afforded in criminal proceedings are not applicable in administrative license-suspension proceedings. Fasching v. Backes, 452 N.W.2d 324, 1990 N.D. LEXIS 54 (N.D. 1990).

Where there was no evidence to suggest that defendant’s intoxilyzer test was improperly administered, the results of her intoxilyzer test were properly admitted into evidence at a civil administrative hearing, despite fact that evidence was allegedly obtained in violation of provisions of this section relating to defendant’s right to an attorney. Fasching v. Backes, 452 N.W.2d 324, 1990 N.D. LEXIS 54 (N.D. 1990).

Finding by the state transportation agency’s hearing officer, that the motorist was offered a reasonable opportunity to contact an attorney, as required by N.D.C.C. § 29-05-20, after the motorist had been stopped for suspected DUI and refused to take a requested chemical test, was supported by the record, as required by N.D.C.C. § 28-32-46. Since the record showed that the motorist had remarked that it was too late at night to contact an attorney, the revocation of the motorist’s driving privileges had to be upheld. Kasowski v. Dir., N.D. DOT, 2011 ND 92, 797 N.W.2d 40, 2011 N.D. LEXIS 92 (N.D. 2011).

Contact an Attorney.

Revocation of the petitioner’s driving privileges was proper, because the petitioner had a reasonable opportunity to contact an attorney, when the petitioner waited over ten minutes before making a call, and rather than calling an attorney the petitioner called a friend; based on the testimony regarding the petitioner’s continued attempts to change the focus of the investigation, his refusal to follow instructions and his complaints about being uncomfortable in the officer’s patrol vehicle, a reasonable mind could have determined the petitioner was trying to delay the investigation. Bell v. N.D. DOT, 2012 ND 102, 816 N.W.2d 786, 2012 N.D. LEXIS 97 (N.D. 2012).

Revocation of a driving under the influence of alcohol arrestee's driving privileges was proper because a preponderance of the evidence supported the hearing officer's factual finding that the arrestee did not request to speak with an attorney before submitting to a chemical test; the arrestee's reference to “lawyer up,” which was mixed in with a barrage of profanity launched at the deputy was beyond the bright line standard against which a purported request for an attorney were judged. Cudmore v. Dir. of the N.D. DOT, 2016 ND 64, 877 N.W.2d 52, 2016 N.D. LEXIS 67 (N.D. 2016).

Because a driver made no attempt to call a lawyer, the supreme court did not have to decide whether the right to counsel would be violated by placing a person in a recorded and monitored room while the person speaks with a lawyer. Koehly v. Levi, 2016 ND 202, 886 N.W.2d 689, 2016 N.D. LEXIS 207 (N.D. 2016).

Denial of defendant's motion to suppress evidence was appropriate because defendant was afforded a meaningful opportunity to consult with an attorney. Defendant was placed in the only room in a police station known by an officer to have a working telephone, defendant was provided with a phone book, the officer kept defendant in view from the time defendant was arrested until the chemical test was conducted, the officer refused to close the door to ensure defendant placed nothing in defendant's mouth prior to administration of the test. City of Dickinson v. Schank, 2017 ND 81, 892 N.W.2d 593, 2017 N.D. LEXIS 82 (N.D. 2017).

Police officer did not violate defendant's limited statutory right to counsel by denying his request to speak with an attorney in between the first and second “blows” of the second breath test sequence. Allowing defendant to stop the test would have invalidated the entire test sequence and materially interfered with the test administration. State v. Ruden, 2017 ND 185, 900 N.W.2d 58, 2017 N.D. LEXIS 197 (N.D. 2017).

District court properly entered a judgment against defendant following his conditional guilty plea to the charge of driving under the influence because he was provided with an opportunity to consult with an attorney before he decided whether to submit to chemical testing and was not required to be provided with a second chance to consult with an attorney subsequent to making a decision to take the chemical test. City of Jamestown v. Schultz, 2020 ND 154, 946 N.W.2d 740, 2020 N.D. LEXIS 171 (N.D. 2020).

Detention.

—Illegal.

Where defendant was not given access to a telephone to attempt to seek advice and assistance, and defendant’s relatively unimpaired condition permitted an inference that contact with others would have resulted in evidence helpful to his defense, the trial court’s finding that defendant was actually prejudiced by his detention was supported by sufficient competent evidence. City of Fargo v. Thompson, 520 N.W.2d 578, 1994 N.D. LEXIS 190 (N.D. 1994).

Privacy.

—Not Guaranteed.

The police are not required to guarantee an accused’s conversations with counsel are not overheard. City of Mandan v. Jewett, 517 N.W.2d 640, 1994 N.D. LEXIS 131 (N.D. 1994).

Driver was afforded a reasonable opportunity to exercise her limited statutory right under N.D.C.C. § 29-05-20 to consult with an attorney before deciding whether to submit to a chemical test even though arrangements to consult with her attorney in private and not in the presence of police officers were not afforded. Eriksmoen v. Dir. of DOT, 2005 ND 206, 706 N.W.2d 610, 2005 N.D. LEXIS 246 (N.D. 2005).

—Telephone Conversation.

When an accused talks with counsel by telephone, the accused’s right to meaningfully consult with counsel before testing can be ensured by a lesser degree of privacy than in situations involving face-to-face meetings between an accused and counsel. City of Mandan v. Jewett, 517 N.W.2d 640, 1994 N.D. LEXIS 131 (N.D. 1994).

Telephone Calls.

In an arrest for drunk driving, where a call to the family would be a local call without any charge for long distance, there is no reason why the police should prevent a call to the driver’s family for information to locate the family’s lawyer, so long as the time for phone calls, the testing, and the booking process is not unduly extended; the jail has no duty to underwrite long-distance calls by arrested drivers before a chemical test decision is made, even though it should not interfere with a driver’s efforts to locate a lawyer so long as the arrest procedure is not unduly delayed. Mayo v. Moore, 527 N.W.2d 257, 1995 N.D. LEXIS 14 (N.D. 1995).

Collateral References.

Admissibility of confession or other statement made by defendant as affected by delay in arraignment—modern state cases, 28 A.L.R.4th 1121.

Law Reviews.

North Dakota Supreme Court Review (Eriksmoen v. N.D. Dep?t of Transp.), 82 N.D. L. Rev. 1033 (2006).

Sufficiency of Complaint.

Complaint authorized by this section was sufficient notwithstanding fact that it did not carry signature of an officer entitled to administer the oath to the complainant and failed to identify the county where the alleged drunken driving occurred, since the docket entry indicated that the county judge swore the complainant but failed to sign the complaint and judicial notice was taken of fact that town mentioned in complaint was in county where case was heard. State v. Medearis, 165 N.W.2d 688, 1969 N.D. LEXIS 117 (N.D. 1969).

Sufficient Clarity to Apprise of the Offense Charged.

If the defendant feels the complaint provided for under this section does not set forth facts with sufficient clarity to inform him of the offense with which he is charged, he may move to quash. But where defendant fails to move to quash before entering his plea, he waives all objections he might have made to the complaint except those which are also grounds for a motion in arrest of judgment by operation of former N.D.C.C. § 29-14-12 (see now N.D.R.Crim.P., Rule 12). State v. Kreiger, 138 N.W.2d 597, 1965 N.D. LEXIS 109 (N.D. 1965).

Arrest Under Warrant.

Officers were acting lawfully under N.D.C.C. § 29-06-02 when executing a federal arrest warrant, and defendant made no contrary showing. Therefore, the contraband yielded was admissible against defendant because it was found in a search incident to a valid arrest. State v. Proell, 2007 ND 17, 726 N.W.2d 591, 2007 N.D. LEXIS 11 (N.D. 2007).

Submission to Request of Police.

Where defendant made an illegal turn in his automobile in North Dakota and was unable to be stopped by North Dakota police, who had witnessed the turn, until after the defendant had crossed the state boundary into Minnesota, there was no arrest of defendant in Minnesota where the police, upon stopping defendant, made a request, without any threat of coercion, that defendant return with them to North Dakota and defendant submitted to such request. City of Wahpeton v. Johnson, 303 N.W.2d 565, 1981 N.D. LEXIS 221 (N.D. 1981).

Collateral References.

Misdemeanor, right of peace officer to enter private house or inclosure for purpose of making an arrest without a warrant for a suspected misdemeanor, 76 A.L.R.2d 1432.

Liability for false arrest or imprisonment under warrant as affected by mistake as to identity of person arrested, 39 A.L.R.4th 705.

Burden of Proof.

Plaintiff who alleged police officers were liable for assault and battery had the burden of proving that the force used by the officers to effect plaintiff’s arrest was unnecessary; the fact the officers’ force resulted in injury more serious than contemplated or intended by the officers was not controlling. Habiger v. City of Fargo, 905 F. Supp. 709, 1995 U.S. Dist. LEXIS 20073 (D.N.D. 1995).

Liability for Damages.

A law enforcement officer has the statutory authority to pursue a person who flees from an arrest; however, in conducting that pursuit, the officer and his employer will be held accountable and be subject to liability, for damages incurred as a result of the pursuit, if the officer’s conduct constitutes gross negligence. Jones v. Ahlberg, 489 N.W.2d 576, 1992 N.D. LEXIS 158 (N.D. 1992).

Necessity of Using Force.

A peace officer, lawfully attempting to take a violator into custody, is under no obligation to retreat or retire to avoid the necessity of using force. Schell v. Collis, 83 N.W.2d 422, 1957 N.D. LEXIS 126 (N.D. 1957).

Presumption in Favor of Officer.

The presumption is always in favor of the correct performance of his duty by an officer. Schell v. Collis, 83 N.W.2d 422, 1957 N.D. LEXIS 126 (N.D. 1957).

Standard of Liability.

To determine the appropriate standard of liability for police pursuits under this section, the court is guided by N.D.C.C. §§ 32-12.1-03 and 32-12.1-04, and N.D.C.C., ch. 39-09. Jones v. Ahlberg, 489 N.W.2d 576, 1992 N.D. LEXIS 158 (N.D. 1992).

In making an arrest, an officer is under no obligation to retreat, but has the legal right to press forward and accomplish the arrest; the duty of law enforcement officers to apprehend violators of the law must be balanced with a duty of care to the general public. Jones v. Ahlberg, 489 N.W.2d 576, 1992 N.D. LEXIS 158 (N.D. 1992).

Constitutionality.

The supreme court of North Dakota declared this section to be unconstitutional because it violated the fourth amendment of the United States Constitution by permitting the warrantless, nonconsensual entry into a suspect’s home in the absence of exigent circumstances to make a routine felony arrest. State v. Nagel, 308 N.W.2d 539, 1981 N.D. LEXIS 318 (N.D. 1981).

Entry of Residence.

North Dakota Supreme Court agrees with other courts that a warrant supported by probable cause, regardless of whether it is a felony or misdemeanor warrant, provides a law officer authority to enter the residence of the person named in the warrant in order to execute the warrant. Therefore, a motion to suppress was improperly granted based on the entry into a residence to serve a misdemeanor warrant; consent was not required for entry. State v. Schmidt, 2015 ND 134, 864 N.W.2d 265, 2015 N.D. LEXIS 132 (N.D. 2015).

Failure to Knock and Announce.

Because officer did not have probable cause to follow defendant suspected of driving while intoxicated into defendant’s house, officer’s entry without knocking and announcing his authority and purpose violated this subsection. City of Bismarck v. Glass, 581 N.W.2d 474, 1998 ND App 1, 1998 N.D. App. LEXIS 1 (N.D. Ct. App. 1998).

Law Reviews.

For Article: Section 1983 Actions in North Dakota: An Empirical Study of Agency Policies and Law Enforcement and Correctional Officers, see84 N.D. L. Rev. 419 (2008).

Probable Cause.

In a case in which defendant appealed from a district court's criminal judgment and order denying his motion to suppress, the Supreme Court concluded that there was sufficient evidence to reach probable cause to arrest for the offense of actual physical control occurring at the time defendant's vehicle crashed into an electrical box. Sufficient evidence of intoxication also existed. City of Bismarck v. Weisz, 2018 ND 49, 907 N.W.2d 409, 2018 N.D. LEXIS 43 (N.D. 2018).

“Charge” Includes Oral Accusation.

The term “charge”, within the statute authorizing an arrest without a warrant on a charge, made on reasonable cause, of the commission of a felony, does not mean a formal written charge presented to the proper authority, but includes an oral charge or accusation made to a peace officer. Haggard v. First Nat'l Bank, 72 N.D. 434, 8 N.W.2d 5, 1943 N.D. LEXIS 80 (N.D. 1943).

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. State v. Willms, 117 N.W.2d 84, 1962 N.D. LEXIS 89 (N.D. 1962).

The arrest on an oral charge of an owner of a place of business which had accepted a check drawn on a bank in which the defendant had no account, was proper since such arrest was made on a charge, based upon reasonable cause, of the commission of a felony by the defendant. State v. Willms, 117 N.W.2d 84, 1962 N.D. LEXIS 89 (N.D. 1962).

Driving Under Influence of Alcohol.

Subsection 6 of this section (now subdivision (1)(f)) was specific and was enacted later than former N.D.C.C. § 29-06-16 (now N.D.C.C. § 29-06-08), so that it controlled and allowed officer to make night arrest without warrant for driving under the influence, even though conditions of such former section were not met. City of Minot v. Knudson, 184 N.W.2d 58, 1971 N.D. LEXIS 159 (N.D. 1971).

Pursuant to subsection 6 of this section (now subdivision (1)(f)), reasonable cause for arrest was established where petitioner’s speech was slurred, he walked unsteadily, he had trouble responding to officer’s questions, his eyes were glazed and bloodshot, and he had a strong odor of alcohol about him. Smestad v. Ellingson, 191 N.W.2d 799, 1971 N.D. LEXIS 109 (N.D. 1971).

Where defendant’s vehicle changed lanes and speed several times without apparent reason, defendant had difficulty producing driver’s license and fell against arresting officer who smelled alcohol on defendant’s breath, officer had sufficient grounds to arrest defendant, without a warrant, for driving under the influence. Clairmont v. Hjelle, 234 N.W.2d 13, 1975 N.D. LEXIS 119 (N.D. 1975).

Subdivision (1)(f) of this section permits probable cause warrantless arrests for D.U.I., but does not expressly condone such arrests in the home. Patzner v. Burkett, 779 F.2d 1363, 1985 U.S. App. LEXIS 25801 (8th Cir. N.D. 1985).

Facts supported the police officer’s probable cause determination where an off-duty deputy sheriff reported a suspicious vehicle being driven in the dark without the use of headlights; the facts and circumstances within the arresting officer’s knowledge were sufficient to lead a person of reasonable caution to believe an offense had been committed where the arresting officer observed driver’s vehicle parked in the middle of the alley with the driver lying in the seat with a strong odor of alcohol pervading the vehicle. Obrigewitch v. Dir., N.D. DOT, 2002 ND 177, 653 N.W.2d 73, 2002 N.D. LEXIS 227 (N.D. 2002).

Entry in Anticipation of an Offense.

In the absence of reasonable knowledge that a crime is being committed, an officer may not enter a place without warrant to observe the occupants in the anticipation that an offense may be committed for which an arrest might be made. State v. Govan, 123 N.W.2d 110, 1963 N.D. LEXIS 106 (N.D. 1963).

Misdemeanor Not in Presence of Officer.

An officer is authorized to arrest for a misdemeanor not committed in his presence only with a warrant. State v. Ritter, 472 N.W.2d 444, 1991 N.D. LEXIS 121 (N.D. 1991).

Offense in Presence of Officer.

Where an arrest is based on commission of an offense in the presence of the arresting officer, subsequent acquittal invalidates the arrest and removes the basis for revocation of a vehicle operator’s license under N.D.C.C., ch. 39-20. Colling v. Hjelle, 125 N.W.2d 453 (N.D. 1963), decided prior to the amendment of N.D.C.C. § 29-06-15(1).

Police officer trained in detection of marijuana from its burning odor had reasonable cause to believe that person arrested had committed a public offense where he smelled burning marijuana from open window of automobile, and subsequent warrantless search and seizure of marijuana in automobile was justified. State v. Binns, 194 N.W.2d 756, 1972 N.D. LEXIS 117 (N.D. 1972).

Odor of marijuana emanating from vehicle stopped for traffic violation gave police officer who was trained in narcotics identification probable cause to make an arrest, and the search of the driver immediately preceding the arrest was a valid search incident to the arrest. State v. Overby, 1999 ND 47, 590 N.W.2d 703, 1999 N.D. LEXIS 51 (N.D. 1999), overruled in part, State v. K.V. (In the Interest of K.V.), 2021 ND 79, 959 N.W.2d 577, 2021 N.D. LEXIS 81 (N.D. 2021).

Defendants, who were 20 years old, were properly arrested for underage drinking where police were in the open doorway of an apartment, did not enter, but questioned the defendants who admitted to being under age and consuming alcohol. City of Fargo v. Steffan, 2002 ND 26, 639 N.W.2d 482, 2002 N.D. LEXIS 16 (N.D. 2002).

Police had probable cause to arrest defendant at the time of the pocket search and, when viewed objectively, had placed him under arrest by the time of the search; the search was therefore justified as a search performed incident to the arrest. Upon seeing the methamphetamine paraphernalia in plain view in the automobile, the officers had probable cause to believe that some drug-related crime was either committed or attempted; therefore, police had the authority to arrest the responsible parties without a warrant, and the trial court did not err in denying defendant’s motion to suppress the evidence. State v. Linghor, 2004 ND 224, 690 N.W.2d 201, 2004 N.D. LEXIS 364 (N.D. 2004).

Evidence was sufficient to convict defendant of preventing arrest or discharge of other duties where defendant created a substantial risk of bodily injury to the sheriff and “substantial force” was required to overcome defendant’s resistance to effecting the arrest and the sheriff was acting lawfully under N.D.C.C. § 29-06-15 when he arrested defendant, as the defendant was committing disorderly conduct in the sheriff’s presence. Defendant swung at the sheriff one or two times and when the sheriff told defendant he was placing him under arrest, defendant put up both fists and swung and grazed the side of the sheriff’s face, and, after defendant was wrestled to the ground, he was trying to kick the sheriff. State v. Barth, 2005 ND 134, 702 N.W.2d 1, 2005 N.D. LEXIS 169 (N.D. 2005).

Preventing Arrest.

Where defendant provided no transcript on appeal, as required by N.D.R.App.P., Rule 10(b), from convictions for preventing arrest and related offenses, the appellate court had no basis to evaluate the sufficiency of the evidence and, in response to defendant’s argument that his arrest was not a lawful warrantless arrest under N.D.C.C. § 29-06-15, had to infer that defendant failed to provide evidence supporting the defense of unlawful police conduct under N.D.C.C. § 12.1-08-02. State v. Mathre, 2004 ND 149, 683 N.W.2d 918, 2004 N.D. LEXIS 277 (N.D. 2004).

Probable Cause.

An arrest without a warrant is valid when a law enforcement officer has probable cause to believe that the arrested person committed a felony. State v. Indvik, 382 N.W.2d 623, 1986 N.D. LEXIS 270 (N.D. 1986).

Probable cause to support a warrantless arrest exists when the facts and circumstances within a police officer’s knowledge and of which he has reasonably trustworthy information are sufficient to warrant a person of reasonable caution in believing that an offense has been or is being committed. State v. Indvik, 382 N.W.2d 623, 1986 N.D. LEXIS 270 (N.D. 1986).

To establish probable cause, it is not necessary that the officer possess knowledge of facts sufficient to establish guilt; all that is necessary is knowledge that would furnish a prudent person with reasonable grounds for believing a violation has occurred. State v. Hensel, 417 N.W.2d 849, 1988 N.D. LEXIS 6 (N.D. 1988).

Where police officer was told by a resident that someone was sleeping in a parked car with the engine running, and upon investigation the officer found defendant asleep in his car, smelling of alcohol, confused and with bloodshot eyes, surrounded by beer cans, one open, the officer had probable cause to arrest defendant, since the officer could reasonably conclude that defendant was in actual physical control of a vehicle while under the influence of alcohol under subdivision 1 f. State v. Hensel, 417 N.W.2d 849, 1988 N.D. LEXIS 6 (N.D. 1988).

Police officers could reasonably have believed there was probable cause to arrest plaintiff for trespassing and were immune from claim under 42 USCS § 1983, where they advised plaintiff he was not privileged to be in university student lounge and gave him notice he was trespassing. Wishnatsky v. Bergquist, 550 N.W.2d 394, 1996 N.D. LEXIS 156 (N.D.), cert. denied, 519 U.S. 895, 117 S. Ct. 240, 136 L. Ed. 2d 169, 1996 U.S. LEXIS 5876 (U.S. 1996).

Location of the ignition key was an issue that arose after the arrest of motorist for suspected driving while under the influence of alcohol, and probable cause for arrest must be based on what was known at the time of the arrest; because probable cause to arrest existed without establishing the location of the key, the motorist was properly arrested. Obrigewitch v. Dir., N.D. DOT, 2002 ND 177, 653 N.W.2d 73, 2002 N.D. LEXIS 227 (N.D. 2002).

The police officer was authorized under this section to make a warrantless arrest of the defendant, who had lost consciousness at a restaurant drive-up window behind the wheel of his running motor vehicle, walked unsteadily and failed field sobriety tests; the officer had probable cause to believe the defendant was in actual physical control of a motor vehicle while under the influence of alcohol or another substance. State v. Waltz, 2003 ND 197, 672 N.W.2d 457, 2003 N.D. LEXIS 214 (N.D. 2003).

Denial of suppression motion was affirmed because officers had probable cause to arrest an individual lying in the back seat of a vehicle for physical obstruction of government function, preventing arrest and burglary, where, during the investigation of a burglary the officers observed defendant and his companion in the vehicle and observed gloves, a hammer and a crowbar, and the occupants refused to open the vehicle and the officers had a locksmith open the vehicle. The officers’ use of a locksmith to open the vehicle to effectuate the arrest of the occupants was eminently reasonable under the Fourth Amendment, seizure of the evidence would have been justified under the plain view doctrine or as incident to a lawful arrest, and the officers’ use of caution in obtaining a search warrant before proceeding further and their subjective beliefs as to the existence or nonexistence of reasonable suspicion and probable cause were of no moment. State v. Washington, 2007 ND 138, 737 N.W.2d 382, 2007 N.D. LEXIS 138 (N.D. 2007).

Police officer had the required N.D.C.C. § 29-06-15 probable cause, also known as “reasonable suspicion,” to investigate a report of the motorist being in actual physical control of a vehicle while under the influence of intoxicating liquor and, thus, the officer did not violate the motorist’s rights under the Fourth Amendment, U.S. Const. amend. IV, made applicable to the states through the Fourteenth Amendment, U.S. Const. amend. XIV, when the officer made a warrantless arrest of the motorist. The officer observed that the motorist had bloodshot eyes, slow speech, mush mouth, and heard the motorist admit that the motorist had been drinking. Engstrom v. N.D. DOT, 2011 ND 235, 807 N.W.2d 602, 2011 N.D. LEXIS 227 (N.D. 2011).

Public Offense in Presence of Officer.

No warrant for arrest on charge of being intoxicated in public place was necessary where public offense was committed in arresting officer’s presence; in prosecution for resisting arrest arising out of officer’s attempts to arrest accused for public intoxication, it was unnecessary to determine legality of complaint charging him with public intoxication since that offense was public offense, officers had reasonable grounds to believe that offense was being committed by accused in their presence, and resistance to arrest was with force and violence. State v. Moe, 151 N.W.2d 310, 1967 N.D. LEXIS 126 (N.D. 1967).

Reasonable Cause.

Where a detective was informed by a citizen, who identified himself, that the defendant was carrying a concealed weapon, the detective had reasonable cause to believe the defendant had committed a felony under subsection 3 of this section (now subdivision 1c), and arrest of defendant without a warrant was lawful, and subsequent search and seizure of concealed gun was also valid. State v. Chaussee, 138 N.W.2d 788, 1965 N.D. LEXIS 96 (N.D. 1965).

Reasonable cause to believe that juvenile had committed felony existed where police, acting on informant’s tip, observed juvenile apparently selling marijuana cigarettes to informant who had been given marked five dollar bill and told to make purchase. Hardy v. Cunningham, 167 N.W.2d 508, 1969 N.D. LEXIS 99 (N.D. 1969).

Arrest without warrant was made upon reasonable cause in view of investigation which had established, inter alia, that large portion of money stolen consisted of one dollar bills, defendant had made a number of purchases with one dollar bills, and two of merchants from whom he had made purchases each had one bill with serial numbers matching number of stolen bill. State v. Rudolph, 193 N.W.2d 237, 1971 N.D. LEXIS 101 (N.D. 1971).

Arrest without warrant cannot be made upon mere suspicion. State v. Gagnon, 207 N.W.2d 260, 1973 N.D. LEXIS 164 (N.D. 1973).

The term “reasonable cause” is synonymous with the term “probable cause”. State v. Salhus, 220 N.W.2d 852, 1974 N.D. LEXIS 215 (N.D. 1974); State v. Frye, 245 N.W.2d 878, 1976 N.D. LEXIS 135 (N.D. 1976).

Where defendant was arrested by a sheriff’s deputy after the deputy received a telephone call from a bank president who stated that defendant had presented for deposit a large check drawn on an Alaska account, then immediately made a large withdrawal from the North Dakota bank on the strength of such deposit, arousing the suspicions of bank personnel who checked and discovered that there were no funds in the Alaska account, the sheriff had reasonable cause to arrest defendant for theft without a warrant, pursuant to former subdivision 3 (see now subdivision 1c) of this section. State v. Frye, 245 N.W.2d 878, 1976 N.D. LEXIS 135 (N.D. 1976).

Where robbery was committed, police found defendant jogging north of the robbery location shortly afterwards, defendant was nervous and frightened, his answers to questions were irrational, and there were large bulges plainly visible in his pockets which he stated contained money, the totality of the circumstances gave the officers reasonable cause to believe defendant had committed the robbery. State v. Arntz, 286 N.W.2d 478, 1979 N.D. LEXIS 330 (N.D. 1979).

Police officer had reasonable cause to believe that a felony had been committed by the defendant, and had authority to make a warrantless arrest of defendant for a felony not committed in officer’s presence, where police officer had reasonable cause to believe that defendant was in possession of a stolen credit card in violation of section 12.1-23-02 and that the street value or thieves’ market value of the credit card was of an amount to classify the illegal possession as a class C felony. State v. McCabe, 315 N.W.2d 672, 1982 N.D. LEXIS 230 (N.D. 1982).

An arrest may be made without a warrant when a law enforcement officer has probable cause to believe that the arrested person committed a felony; probable cause to support a warrantless arrest exists when the facts and circumstances within a police officer’s knowledge and of which he has reasonably trustworthy information are sufficient to warrant a man of reasonable caution in believing that an offense has been or is being committed. State v. Lind, 322 N.W.2d 826, 1982 N.D. LEXIS 366 (N.D. 1982).

Unreasonable Search.

Officers who discover a misdemeanor and make an arrest may not continue an unreasonable search after the arrest is made. State v. Govan, 123 N.W.2d 110, 1963 N.D. LEXIS 106 (N.D. 1963).

Warrantless Entry of Home.

A combination of probable cause and exigent circumstances is required to permit the warrantless, nonconsensual entry into a suspect’s home to make a felony arrest; the imminent destruction of evidence of a crime may be a sufficient exigent circumstance to permit the warrantless, nonconsensual entry into a home to make an arrest; however, when destruction of evidence is the exigent circumstance, there must be more than a mere belief that such destruction is probable, coupled with the fact that the suspects know or will soon become aware that the police are on their trail, and that the entry is the least intrusive which, under the circumstances, is possible. State v. Nagel, 308 N.W.2d 539, 1981 N.D. LEXIS 318 (N.D. 1981).

Officers’ testimony about the feared destruction of evidence, upon which they based their right to enter the home without a warrant, was nothing more than speculation and did not demonstrate exigent circumstances so as to overcome the presumption of unreasonableness that attaches to all warrantless home entries. State v. Ackerman, 499 N.W.2d 882, 1993 N.D. LEXIS 87 (N.D. 1993).

Collateral References.

Misdemeanor, right of peace officer to enter private house or inclosure for purpose of making an arrest without a warrant for a suspected misdemeanor, 76 A.L.R.2d 1432.

Horizontal gaze nystagmus test: use in impaired driving prosecution, 60 A.L.R.4th 1129.

Law Reviews.

For Article: Section 1983 Actions in North Dakota: An Empirical Study of Agency Policies and Law Enforcement and Correctional Officers, see84 N.D. L. Rev. 419 (2008).

Disorderly Conduct in Presence of Officer.

Where officers apparently believed that the crime of disorderly conduct was committed in the officers’ presence and an officer told the defendant that he was under arrest, the cause of the arrest was obvious and the arrest accordingly was valid; thus, arrest was not a mere pretext upon which to base search which yielded controlled substances. State v. Harris, 286 N.W.2d 468, 1979 N.D. LEXIS 331 (N.D. 1979).

Failure to State Authority.

Warrantless arrest was unlawful where officers did not inform defendant of the cause of his arrest but said only that they were investigating his activities. State v. Gagnon, 207 N.W.2d 260, 1973 N.D. LEXIS 164 (N.D. 1973).

Judging Conduct of Officer.

The conduct of an officer in making an arrest must be weighed in the light of the circumstances under which he acted and not by the incidental results thereof. Schell v. Collis, 83 N.W.2d 422, 1957 N.D. LEXIS 126 (N.D. 1957).

Pursuit.

To be in pursuit, this section does not require that police in car have the lights flashing or the siren on; it is the time frame, rather than the mode of pursuit, which is of critical importance in determining whether or not the pursuit exception to officer’s duty to inform of his authority and the cause of the arrest is applicable. State v. Klevgaard, 306 N.W.2d 185, 1981 N.D. LEXIS 297 (N.D. 1981).

Robbery Suspect.

Robbery suspect was sufficiently informed of authority and cause of his arrest where he was pursued immediately after the commission of the offense by officer who was in uniform and who told defendant he was being questioned in connection with a particular robbery. State v. Arntz, 286 N.W.2d 478, 1979 N.D. LEXIS 330 (N.D. 1979).

Admitting Commission of Offense.

Where defendant stated that he was then engaged in the commission of a public offense before any arrest or search was made, he might lawfully be arrested by a private person. State v. Shank, 52 N.D. 94, 202 N.W. 128, 1924 N.D. LEXIS 119 (N.D. 1924).

Driving Under Influence of Alcohol.

The trial court did not err in denying defendant’s motion to suppress his DUI arrest when bureau of indian affairs officer observed and pursued defendant weaving, speeding and driving erratically while on the reservation but was unable to stop defendant until he had crossed reservation boundaries, since he had the authority to make a citizen’s arrest and there was no evidence of subterfuge, plot or scheme to purposely evade the law. State v. Littlewind, 417 N.W.2d 361, 1987 N.D. LEXIS 461 (N.D. 1987).

Misdemeanor.

A misdemeanor is a public offense. State v. Littlewind, 417 N.W.2d 361, 1987 N.D. LEXIS 461 (N.D. 1987).

Police Officer Outside His Jurisdiction.

A police officer acting outside of his jurisdiction is without official capacity and without official power to arrest; however, a police officer acting outside of his jurisdiction has the same power of arrest as does a private citizen. State v. Littlewind, 417 N.W.2d 361, 1987 N.D. LEXIS 461 (N.D. 1987).

Public Offense.

As used in this section, the term “public offense” includes misdemeanors. State v. Bergeron, 326 N.W.2d 684, 1982 N.D. LEXIS 390 (N.D. 1982).

Public Offense Committed in Presence of Private Person.

Where private person saw defendant driving a car and was within minutes thereafter informed by a peace officer that defendant’s driver’s license was suspended, private person’s sensory perception alerted her to the fact defendant was driving with a suspended license, and such offense was committed in the presence of the private person. State v. Bergeron, 326 N.W.2d 684, 1982 N.D. LEXIS 390 (N.D. 1982).

In order to have a valid citizen’s arrest for a public offense committed in the citizen’s presence, the public offense must have been committed or attempted in the presence of the private person; with the phrase “in his presence” being liberally construed and “presence” determined by whether or not the private person detected commission of the offense through use of his senses. State v. Bergeron, 326 N.W.2d 684, 1982 N.D. LEXIS 390 (N.D. 1982).

Warrantless Arrest.

A private person’s authority to make a warrantless arrest for a misdemeanor is more limited than that of a police officer, since a police officer may arrest with probable cause, but a private person may arrest only when the misdemeanor is actually committed or attempted in his presence. State v. Littlewind, 417 N.W.2d 361, 1987 N.D. LEXIS 461 (N.D. 1987).

Collateral References.

Private person’s authority to shoot or kill alleged felon in making felony arrest, 32 A.L.R.3d 1078.

Delay in Presenting Prisoner.

What amounts to reasonable diligence in presenting a prisoner before a magistrate depends on the peculiar facts of each case. Haggard v. First Nat'l Bank, 72 N.D. 434, 8 N.W.2d 5, 1943 N.D. LEXIS 80 (N.D. 1943).

Mere delay in taking a defendant arrested without a warrant before a magistrate will not render a confession made in the meantime inadmissible. State v. Nagel, 75 N.D. 495, 28 N.W.2d 665, 1947 N.D. LEXIS 86 (N.D. 1947).

The right of a person arrested without a warrant to be taken before the nearest and most accessible magistrate of the county where he was arrested is not a constitutional right but purely statutory, and where the record establishes that the person was lawfully arrested and taken to the adjacent county, where the offense for which he was arrested was triable, and the following morning was taken before a magistrate who set bail, he is not, after conviction of the offense for which he was arrested, entitled to post-conviction relief on ground that statute was not complied with. State v. Rudolph, 193 N.W.2d 237, 1971 N.D. LEXIS 101 (N.D. 1971).

Three-day delay in taking defendant before a magistrate, although a questionable practice, was not unreasonable since defendant was asked at preliminary hearing whether he had made any confessions or admissions or whether he had been threatened by anyone and he replied in the negative, and since there was no evidence of interrogation or the eliciting of damaging statements. State v. Barlow, 193 N.W.2d 455, 1971 N.D. LEXIS 108 (N.D. 1971).

Accused who was arrested while leaving the scene of crime late on a Sunday night and who appeared before a magistrate on the following day was taken before a magistrate without undue delay. State v. Ankney, 195 N.W.2d 547, 1972 N.D. LEXIS 118 (N.D. 1972).

Legislative Intent.

The intent of this section is to interpose the judgment of an independent magistrate between the judgment of the peace officer or a private person in arresting another person without a warrant and the decision to hold him for preliminary examination or to stand trial. State v. Iverson, 187 N.W.2d 1, 1971 N.D. LEXIS 183 (N.D.), cert. denied, 404 U.S. 956, 92 S. Ct. 322, 30 L. Ed. 2d 273, 1971 U.S. LEXIS 443 (U.S. 1971).

Magistrate in County of Arrest.

Where Indian was arrested on reservation without warrant by deputy sheriff of adjacent county for felony committed in that county and no contention was made that felony was not committed or that officer did not have reasonable grounds to believe that the Indian had committed it, arrest did not deprive Indian of rights under constitution or laws or treaties of United States, and thus he was not entitled to habeas corpus; failure to take Indian before nearest magistrate in county where arrest was made, instead of taking him before magistrate of county in which offense was triable, was not prejudicial and did not entitle Indian to habeas corpus. Fournier v. Roed, 161 N.W.2d 458, 1968 N.D. LEXIS 85 (N.D. 1968).

Magistrate in Nearest County.

Erroneously taking defendant to magistrate in other than nearest county was not prejudicial and did not deprive the court of jurisdiction; in any event, error was waived by guilty plea. State v. Barlow, 193 N.W.2d 455, 1971 N.D. LEXIS 108 (N.D. 1971).

Violation of Section.

A violation of the express terms of this section does not, in itself, entitle a defendant to post-conviction relief in the absence of a showing that he was deprived of a fair trial or was otherwise prejudiced as a result of the error. State v. Jensen, 333 N.W.2d 686, 1983 N.D. LEXIS 269 (N.D. 1983).

Constitutionality.

This section is construed to permit an indigent defendant, who is to repay for his court-appointed attorney, to claim all the exemptions from process granted to other judgment debtors, and where repayment for court-appointed attorney is made a condition of probation, there must be a finding that probationer is capable, but unwilling, to repay before probation may be revoked for failure to repay; as construed, this section is not unconstitutionally vague, does not violate the due process or equal protection clauses of the federal constitution, does not have an unconstitutional chilling effect on a defendant’s right to counsel, and it is constitutional. State v. Kottenbroch, 319 N.W.2d 465, 1982 N.D. LEXIS 281 (N.D. 1982).

Condition of Probation.

Repayment for court-appointed attorney may be made a condition of probation; however, there must be a finding that probationer is capable, but unwilling, to repay before probation may be revoked for failure to repay. State v. Kottenbroch, 319 N.W.2d 465, 1982 N.D. LEXIS 281 (N.D. 1982).

Discretion of Court.

Where attorney who represented indigent submitted bill to court for $1,496.34, and nearly all attorney’s time was spent in preparation, not actual trial time, itemization of time lacked specificity, and approval was not obtained prior to employment of investigator, court did not abuse its discretion in approving only $821.55 of bill. Baer v. O'Keefe, 235 N.W.2d 885, 1975 N.D. LEXIS 139 (N.D. 1975).

Misdemeanor Prosecution.

Judge of county court with increased jurisdiction trying even a misdemeanor, has duty under this section to go forward to determine whether or not defendant is indigent or needy, and upon determination that he is needy, to appoint counsel at public expense. State v. Heasley, 180 N.W.2d 242, 1970 N.D. LEXIS 140 (N.D. 1970).

Postconviction Proceedings.

Where petitioner pled guilty to driving under suspension and driving without liability insurance in the municipal court, the Supreme Court of North Dakota held that post-conviction relief under N.D.C.C. ch. 29-32.1 was not available in the municipal courts. By conditioning the payment of expenses for an appeal or post-conviction matter on the matter being taken from a conviction resulting from violation of a municipal ordinance, N.D.C.C. § 29-07-01.1 implies the appeal or post-conviction matter is not taken from a judgment of conviction in municipal court. Holbach v. City of Minot, 2012 ND 117, 817 N.W.2d 340, 2012 N.D. LEXIS 109 (N.D. 2012).

Collateral References.

Validity, construction, and application of state recoupment statutes permitting state to recover counsel fees expended for benefit of indigent criminal defendants, 39 A.L.R.4th 597.

Conflicting Interests.

North Dakota’s policy of openness in judicial proceedings may at times conflict with a defendant’s right to a fair trial. Such a situation may arise where a motion is made to close a preliminary examination pursuant to this section, and when it does, the trial court must seek to best accommodate these conflicting interests. Minot Daily News v. Holum, 380 N.W.2d 347, 1986 N.D. LEXIS 254 (N.D. 1986).

Discretion of Court.

Judge did not abuse his discretion in ordering the closing of the preliminary examination as provided in this section where the defendant, with the concurrence of the state’s attorney, requested the closing order and the judge’s stated reasons for ordering the closing were that in the conduct of the examination the court was authorized to receive and consider evidence that may otherwise be inadmissible at the time of trial and evidence that would be offered at the examination was of such a nature that to permit it to come within the general knowledge of a prospective juror would be highly prejudicial to the defendant and deny him his right to a fair trial by an impartial jury. Dickinson Newspapers v. Jorgensen, 338 N.W.2d 72, 1983 N.D. LEXIS 372 (N.D. 1983).

Preliminary examinations should generally be open to the public; however, if, upon motion by the defendant and a hearing thereon, the magistrate finds and determines that evidence inadmissible at the trial on the issue of guilt or innocence will be admissible at the preliminary examination, and as a result there is a substantial likelihood that such evidence will interfere with the defendant’s right to a fair and impartial jury, then departure from the policy of openness to the public will be justified. Dickinson Newspapers v. Jorgensen, 338 N.W.2d 72, 1983 N.D. LEXIS 372 (N.D. 1983).

Procedure.

For case setting out the proper procedure to be followed by the trial courts in their consideration of motions to close preliminary examinations, see Minot Daily News v. Holum, 380 N.W.2d 347, 1986 N.D. LEXIS 254 (N.D. 1986).

When Preliminary Hearing Should Be Closed.

A preliminary examination should not be closed unless the trial court finds there are no reasonable alternatives to complete closure. Minot Daily News v. Holum, 380 N.W.2d 347, 1986 N.D. LEXIS 254 (N.D. 1986).

In exercising its discretion under this section, a trial court should close a preliminary examination only upon a showing that evidence inadmissible at trial will be offered at the preliminary examination and that as a result there is a substantial likelihood of interference with the defendant’s right to a fair trial. Minot Daily News v. Holum, 380 N.W.2d 347, 1986 N.D. LEXIS 254 (N.D. 1986).

Minimum Period of Detention.

—Dismissal of Charge.

Where a DUI arrestee was not allowed to post bail until after a minimum period of detention, and considering the chronology and circumstances of defendant’s arrest, dismissal of the charge was appropriate without a showing of actual prejudice. City of Fargo v. Berntson, 505 N.W.2d 747, 1993 N.D. LEXIS 164 (N.D. 1993).

—Unauthorized.

Municipal court’s blanket order for “minimum periods of detention, prior to release pending trial” for all DUI arrestees was not authorized by rule or by statute, and was unlawful. City of Fargo v. Stutlien, 505 N.W.2d 738, 1993 N.D. LEXIS 203 (N.D. 1993); City of Fargo v. Berntson, 505 N.W.2d 747, 1993 N.D. LEXIS 164 (N.D. 1993).

Release on Bond.

—Not Required.

Municipal bond schedule providing that person arrested for DUI or Leaving the Scene of an Accident be held in custody from the time of their arrest until the judge reviewed the case the next morning did not violate this section; although this section vests the municipal judge or magistrate with discretion to set up a bond schedule and avoid the usual procedures in DUI cases, the judge is not required to do so. City of Devils Lake v. Corrigan, 1999 ND 16, 589 N.W.2d 579, 1999 N.D. LEXIS 18 (N.D. 1999).

—Required.

Absent extraordinary circumstances, a person arrested for DUI must be released on bond to go with a responsible adult; where officer believed he was required to jail defendant for detoxification, and told her boyfriend any effort to get her released on bond would be futile for eight hours, defendant’s mandatory jail detention was unlawful. City of Jamestown v. Erdelt, 513 N.W.2d 82, 1994 N.D. LEXIS 60 (N.D. 1994).

—Traffic Violations.

This section allows a magistrate or a municipal judge to appoint persons to “arrange, receive, and approve bail” for traffic violations, and former N.D.C.C. § 29-08-21 (superseded by N.D.R.Crim.P., Rule 46) allowed the court to treat the forfeiture of bail as a final disposition of a traffic violation. Together, these sections allowed for the expedited release of individuals arrested for traffic violations without triggering the usual criminal procedures, but did not permit municipal courts to authorize “minimum periods of detention, prior to release pending trial.” City of Fargo v. Stutlien, 505 N.W.2d 738, 1993 N.D. LEXIS 203 (N.D. 1993).

Evidence Inadmissible at Trial.

Indictment was not rendered void by fact that grand jury may have received evidence that would not be admissible at trial where there was sufficient competent evidence received by the grand jury to support the indictment. State v. Skjonsby, 319 N.W.2d 764, 1982 N.D. LEXIS 265 (N.D. 1982).

Grounds for Challenging Indictment.

Assertion that the evidence heard by a grand jury was not sufficient to support an indictment serves as a limited ground for challenging the indictment; proper procedure to challenge order of trial court denying motion to dismiss the indictment when insufficiency of evidence is asserted is by application to supreme court for a writ of certiorari, and not to raise the issue on appeal from a judgment of conviction. State v. Nordquist, 309 N.W.2d 109, 1981 N.D. LEXIS 344 (N.D. 1981).

Standard of Proof.

The grand jury’s function is to determine whether or not an accusation, not a conviction, is warranted; proof beyond a reasonable doubt that the proposed subject of the indictment committed the offense is not a required standard to be met before an indictment may be found. State v. Nordquist, 309 N.W.2d 109, 1981 N.D. LEXIS 344 (N.D. 1981).

Duty of Grand Jury.

Grand jury does not have a duty to pursue or exhaust every possible defense which may be available to a defendant if his case goes to trial. State v. Skjonsby, 319 N.W.2d 764, 1982 N.D. LEXIS 265 (N.D. 1982).

Duty of State’s Attorney.

This section imposes an implicit duty upon the state’s attorney or prosecutor to play an active role in facilitating the purpose of this section. State v. Nordquist, 309 N.W.2d 109, 1981 N.D. LEXIS 344 (N.D. 1981).

Exculpatory Evidence.

As used in this section, exculpatory evidence is evidence which would preclude issuing an indictment, and does not include anything which might work in favor of or benefit the defendant in his defense at trial. State v. Skjonsby, 319 N.W.2d 764, 1982 N.D. LEXIS 265 (N.D. 1982).

Omission of Evidence.

Omission of police reports regarding suspect’s alibi from the grand jury’s consideration did not constitute a violation of this section requiring a dismissal of the indictment where the presence of the police reports would not necessarily have precluded the grand jury from arriving at a decision to indict the suspect, and the grand jury had testimony before it which was the same as that reflected in the police reports and which tended to exculpate the suspect. State v. Nordquist, 309 N.W.2d 109, 1981 N.D. LEXIS 344 (N.D. 1981).

Standard of Proof.

The grand jury’s function is to determine whether or not an accusation, not a conviction, is warranted; proof beyond a reasonable doubt that the proposed subject of the indictment committed the offense is not a required standard to be met before an indictment may be found. State v. Nordquist, 309 N.W.2d 109, 1981 N.D. LEXIS 344 (N.D. 1981).

This section does not require proof beyond a reasonable doubt to support an indictment. State v. Skjonsby, 319 N.W.2d 764, 1982 N.D. LEXIS 265 (N.D. 1982).

Constitutionality.

This section is a reasonable and workable statutory arrangement for permitting a litigant to obtain a change of judge, does not conflict with any rules promulgated by the supreme court, and is not unconstitutional as a violation of the separation of powers doctrine. Traynor v. Leclerc, 1997 ND 47, 561 N.W.2d 644, 1997 N.D. LEXIS 56 (N.D. 1997).

Affidavit Joined in by All Parties.

A disqualifying affidavit must be joined in by all parties defendant, except those who default or who are merely nominal. Huether v. Havelock Equity Exch., 52 N.D. 786, 204 N.W. 828, 1925 N.D. LEXIS 147 (N.D. 1925).

Affidavit Not Libel.

Affidavit of prejudice cannot be used by judge against whom it was directed as the basis for libel suit against person so filing. Lauder v. Jones, 13 N.D. 525, 101 N.W. 907, 1904 N.D. LEXIS 79 (N.D. 1904).

Interlocutory.

District court properly denied a father's motions for recusal, for change of judge in child support modification proceedings, to hold the mother in contempt of the divorce judgment, and to reconsider because the father waived his issues on appeal regarding recusal, the orders denying his demands for change of judge were interlocutory and not appealable, the father's relentless filing of meritless motions was clearly for purposes of harassing the mother, the court thoroughly explained its reasons for refusing to hold the mother in contempt, and the father failed to establish any contempt on the part of the mother. Rath v. Rath, 2017 ND 128, 895 N.W.2d 306, 2017 N.D. LEXIS 129 (N.D. 2017).

Mandatory disqualification.

It was error for a successor judge to vacate a prior judge's child support modification order under N.D.C.C. § 29-15-21 based on the fact that a father had moved for recusal of the prior judge before the order was entered because the statute did not apply, so the statute did not deprive the prior judge of authority to enter the modification order, as the statute was not cited as the basis for the recusal motion. Schweitzer v. Mattingley, 2016 ND 231, 887 N.W.2d 541, 2016 N.D. LEXIS 232 (N.D. 2016).

Practice and Procedure.

District court erred in denying a demand for change of judge based solely on its timeliness because the demand for change of judge on the ground of bias was based on allegations of actions of the assigned judge prior to trial. Therefore, reversal of the court's judgment and remand for further proceedings was necessary. Gray v. Berg, 2015 ND 203, 868 N.W.2d 378, 2015 N.D. LEXIS 219 (N.D. 2015).

District court properly denied a father's demands for a change of judge because he did not meet statutory requirements for a change of judge where he did not file a demand for change of judge before the judge he sought to be disqualified ruled on his motion for joinder. Rath v. Rath, 2017 ND 138, 895 N.W.2d 315, 2017 N.D. LEXIS 140 (N.D. 2017).

Trial judge did not err in recusing himself because a father did not explain what knowledge the judge obtained in his personal capacity, the fact that the judge heard testimony in a different residential responsibility case involving the mother did not on its own raise a reasonable question about his impartiality where the relevant circumstances of the prior case were public record when the judge was assigned to this case, and no demand for change of judge was made. Colling v. Behrens (In re R.W.B.C.), 2017 ND 144, 896 N.W.2d 226, 2017 N.D. LEXIS 132 (N.D. 2017).

Sufficiency of Allegation of Prejudice.

Court did not err in denying defendant’s demand for a change of judge where defendant’s demand cited only N.D.C.C. § 29-15-21, under which the demand was untimely and did not comply with other requirements, if the demand was intended to rely on bias, defendant’s allegations of preconceived notions were too vague, and the judge’s adverse rulings were not a basis for recusal. State v. Hunter, 2018 ND 173, 914 N.W.2d 527, 2018 N.D. LEXIS 179 (N.D. 2018), cert. denied, — U.S. —, 139 S. Ct. 804, 202 L. Ed. 2d 591, 2019 U.S. LEXIS 563 (U.S. 2019).

“Any” Defined.

Giving the word “any” its ordinary and comprehensive meaning, it reasonably means “all” or “every” in the context of this section. State v. Zueger, 459 N.W.2d 235, 1990 N.D. LEXIS 168 (N.D. 1990).

Authority of Designated Judge.

A judge called into a district to try a case has authority to hear and decide all motions and other matters connected therewith. State v. Tomlinson, 7 N.D. 294, 74 N.W. 995, 1898 N.D. LEXIS 60 (N.D. 1898).

Authority of Incoming Judge.

Judge designated to act in place of the one disqualified has authority to hear and determine applications with respect to change of place of trial and to what county the case should be transferred. State v. Phillips, 68 N.D. 113, 277 N.W. 609, 1938 N.D. LEXIS 89 (N.D. 1938).

Change of Judge Who Denied Jury Trial.

Supreme court would grant change of judge when the judge had denied a demand for jury trial and so would be presiding at the trial on the merits. United Hosp. v. Hagen, 285 N.W.2d 586, 1979 N.D. LEXIS 316 (N.D. 1979).

Change of Venue.

After a judge grants a change of venue to a county in another district, a duly-elected judge in the judicial district to which the case is transferred then has jurisdiction to decide the lawsuit. Thompson v. Peterson, 546 N.W.2d 856, 1996 N.D. LEXIS 123 (N.D. 1996).

Complete Authority.

Designation by supreme court of substitute judge does not limit his authority to matters incident to trial of particular case, but gives him authority to accept plea of guilty and to pronounce sentence. State ex rel. Johnson v. Thomson, 76 N.D. 125, 34 N.W.2d 80 (1948), decided prior to the adoption of N.D.R.Crim.P., Rule 21.

Contempt Case.

Person accused of civil contempt was not entitled to have presiding judge disqualified for prejudice and another judge called to determine the case. Township of Noble v. Aasen, 10 N.D. 264, 86 N.W. 742, 1901 N.D. LEXIS 32 (N.D. 1901).

Judge against whom a demand for change of judge has been filed is not disqualified from conducting civil contempt proceedings that arise out of actions or orders issued prior to the demand for change of judge. Schmidt v. Thompson, 347 N.W.2d 315, 1984 N.D. LEXIS 265 (N.D. 1984).

Designation of Judge.

A district court judge, against whom an affidavit of prejudice is filed in a criminal action, has no authority to designate another judge to act in his stead at the trial. State v. Peterson, 49 N.D. 117, 190 N.W. 309, 1922 N.D. LEXIS 19 (N.D. 1922).

Domestic Relations Proceedings.

The provision allowing for a change of judge in domestic relations cases clearly applies only to a proceeding to modify an order after the original action has been concluded. It has no application to an interim order made prior to trial in a pending divorce action. Stroschein v. Stroschein, 390 N.W.2d 547, 1986 N.D. LEXIS 358 (N.D. 1986).

Husband was not entitled to a change of judge pursuant to this section because the wife’s motion to enforce the divorce judgment’s division of the husband’s employee retirement account did not invoke a proceeding to modify the original divorce decree, but rather initiated a proceeding to enforce that decree. Giese v. Giese, 2002 ND 194, 653 N.W.2d 663, 2002 N.D. LEXIS 247 (N.D. 2002).

Failure to Raise Issue in Trial Court.

Where appellant never made a motion for a new trial, nor did she move for relief from the judgment, pursuant to N.D.R.Civ.P., Rule 60(b)(vi) nor did she demand for a change of judge pursuant to this section until the case was already on appeal to the supreme court, she failed to raise in the trial court the issue of judicial bias. Wenzel v. Wenzel, 469 N.W.2d 156, 1991 N.D. LEXIS 73 (N.D. 1991).

Invalid Order.

Order made by disqualified judge designating another judge of the same judicial district as substitute is invalid. State ex rel. Johnson v. Thomson, 76 N.D. 125, 34 N.W.2d 80 (1948), decided prior to the adoption of N.D.R.Crim.P., Rule 21.

Limits of Authority.

Order of supreme court designating judge does not confer upon him the power to hear cases other than the one for which he has been designated. State v. Garrison, 68 N.D. 71, 276 N.W. 693, 1937 N.D. LEXIS 130 (N.D. 1937); State ex rel. Johnson v. Thomson, 76 N.D. 125, 34 N.W.2d 80 (1948), decided prior to the adoption of N.D.R.Crim.P., Rule 21.

Mandatory Disqualification.

It is error for trial judge to refuse to disqualify himself where defendant has presented valid affidavit of prejudice. State v. Kent, 4 N.D. 577, 62 N.W. 631, 27 L.R.A. 686 (1895), decided prior to the enactment of Laws 1921, Chapter 129, §§ 1 and 4 (see now N.D.R.Crim.P., Rule 21) State v. Pancoast, 5 N.D. 516, 67 N.W. 1052 (N.D. 1896); State v. Boyd, 26 N.D. 224, 144 N.W. 232, 1913 N.D. LEXIS 62 (N.D. 1913); 60 A.L.R.4th 1129.

When an affidavit alleging prejudice is presented, another judge must be called. State v. Pancoast, 5 N.D. 516, 67 N.W. 1052 (N.D. 1896); Orcutt v. Conrad, 10 N.D. 431, 87 N.W. 982, 1901 N.D. LEXIS 48 (N.D. 1901).

Ministerial Duties.

When the resident judge is disqualified to try a case, he has certain ministerial duties to perform, but is inhibited from exercising any judicial functions in the action. Orcutt v. Conrad, 10 N.D. 431, 87 N.W. 982, 1901 N.D. LEXIS 48 (N.D. 1901).

Misstatement of Fact in Motion.

Defendant’s motion for rescission of order granting a change of judge made pursuant to this section was denied despite fact that state, in requesting change of judge, had erroneously stated that the previously assigned judge had not ruled upon any matter pertaining to the action or proceeding on which the moving party was heard or had an opportunity to be heard; defendant’s admission that neither he nor his attorney had any objection to the judge assigned pursuant to the order and that the assigned judge had granted a stipulated continuance of the case over the term sufficiently vitiated state’s error in original motion. State v. Cook, 209 N.W.2d 888, 1973 N.D. LEXIS 165 (N.D. 1973).

No Legislative Repeal.

The statute which provides for the change of place of trial, and for a change of judges upon the filing of an affidavit of prejudice by the accused, is not repealed by the statute providing for the designation of a trial judge by the supreme court. State v. Craig, 54 N.D. 5, 208 N.W. 394, 1926 N.D. LEXIS 105 (N.D. 1926).

Number of Affidavits.

The statute does not permit the filing of more than one affidavit of prejudice against a judge at the same term. Pelton v. Rosen, 46 N.D. 271, 176 N.W. 920, 1920 N.D. LEXIS 4 (N.D. 1920).

Parties to Affidavit.

A disqualifying affidavit must be joined in by all parties defendant except those who default or who are merely nominal. Huether v. Havelock Equity Exch., 52 N.D. 786, 204 N.W. 828, 1925 N.D. LEXIS 147 (N.D. 1925).

Post-Conviction Proceedings.

This section does not apply to post-conviction proceedings under the revised Post Conviction Procedure Act, N.D.C.C. ch. 29-32.1. Falcon v. State, 1997 ND 200, 570 N.W.2d 719, 1997 N.D. LEXIS 248 (N.D. 1997).

Purpose of Statute.

The purpose of a statute providing for a change of the judge on a party’s affidavit of prejudice is not to enable a party to have a particular judge designated to try the cause, but to obtain a change of the judge when he honestly believes the presiding judge would be biased or prejudiced. State v. Garrison, 68 N.D. 71, 276 N.W. 693, 1937 N.D. LEXIS 130 (N.D. 1937), decided prior to the adoption of N.D.R.Crim.P., Rule 21.

Remedy.

Writ of prohibition will issue against judge who attempts to continue trial after disqualification. State ex rel. Lucia v. Monson, 55 N.D. 892, 215 N.W. 680, 1927 N.D. LEXIS 180 (N.D. 1927).

Right of State to Disqualify.

Where defendant has filed affidavit and obtained dismissal of presiding judge, state is not entitled, as a matter of right, to have incoming judge disqualified upon its affidavit of prejudice. State v. Donnelly, 68 N.D. 76, 276 N.W. 695, 1937 N.D. LEXIS 131 (N.D. 1937).

The legislature clearly intended the government to be a “party” authorized to demand a change of judge. Traynor v. Leclerc, 1997 ND 47, 561 N.W.2d 644, 1997 N.D. LEXIS 56 (N.D. 1997).

Sufficiency of Allegation of Prejudice.

Trial court properly denied inmate a peremptory removal of the judge and a change of judge based on prejudice where inmate alleged no meaningful allegations of prejudice or bias, but rather only contended that the trial judge was without jurisdiction to rule on the matter once inmate alleged prejudice. Syvertson v. State, 2000 ND 185, 620 N.W.2d 362, 2000 N.D. LEXIS 282 (N.D. 2000), cert. dismissed, 532 U.S. 939, 121 S. Ct. 1428, 149 L. Ed. 2d 342, 2001 U.S. LEXIS 2665 (U.S. 2001).

Time for Filing.

An affidavit of prejudice directed to the judge of the district court and not filed before the commencement of the term at which the case is to be tried is of no effect. Stockwell v. Crawford, 21 N.D. 261, 130 N.W. 225, 1911 N.D. LEXIS 140 (N.D. 1911).

An affidavit of prejudice, filed after the opening of a term of court but before the date to which an adjournment is taken, is not filed within the time limited, and may be disregarded by the court. Grabau v. Nurnberg, 39 N.D. 57, 166 N.W. 508, 1917 N.D. LEXIS 139 (N.D. 1917).

A party is entitled to a peremptory challenge of an assigned judge, without alleging bias or prejudice. However, the party seeking to disqualify a judge must file a timely request before that judge has ruled upon any matter pertaining to the case. State v. Zueger, 459 N.W.2d 235, 1990 N.D. LEXIS 168 (N.D. 1990).

Defendant’s demand for change of judge was properly denied where it was not made before the judge sought to be disqualified had ruled on a matter pertaining to the proceeding, namely, a motion for an expedited trial date. State v. Zueger, 459 N.W.2d 235, 1990 N.D. LEXIS 168 (N.D. 1990).

Where demands for a change of judge were made in excess of ten days, they were untimely pursuant to subdivision (2)(b) of this section. Adolph Rub Trust v. Rub, 473 N.W.2d 442, 1991 N.D. LEXIS 138 (N.D. 1991).

Record showed that defendant intentionally failed to raise issue of trial judge’s bias before trial, and eleventh-hour demand for a change of judge was held to be merely a stratagem to delay the trial. Varriano v. Bang, 541 N.W.2d 707, 1996 N.D. LEXIS 12 (N.D. 1996).

Since this provision makes no reference to a case being scheduled on the calendar, but simply requires a judge to be assigned for trial in order for the ten-day period in which to make the demand for a change of judge to begin to run, the defendant’s demand for change of judge was untimely when made more than a month after notice was given of the judge assigned. State v. Velasquez, 1999 ND 217, 602 N.W.2d 693, 1999 N.D. LEXIS 229 (N.D. 1999).

In a criminal contempt case arising from a visitation dispute, a demand for a change of judge, filed over a year after the trial judge had been assigned to the case, was untimely under N.D.C.C. § 29-15-21(2). State v. Stockert, 2004 ND 146, 684 N.W.2d 605, 2004 N.D. LEXIS 276 (N.D. 2004).

Court did not err in denying the patient's demand for a change of judge because, in response to the petitions for continuing treatment, the judge had made rulings in the continuing case involving the patient and the mental health center, after which the demand for a change of judge was not statutorily permitted. Southeast Human Serv. Ctr. v. M.S. (In re M.S.), 2017 ND 208, 900 N.W.2d 805, 2017 N.D. LEXIS 211 (N.D. 2017).

Presiding judge properly denied defendant’s demand for a change of judge because it was untimely; while it appeared from the record that the presiding judge’s determination regarding defendant’s request to disqualify the assigned judge appeared appropriate, on remand, the assigned judge was required to determine whether a reasonable person could, on the basis of all the facts, reasonably question the judge’s impartiality. State v. Wallace, 2018 ND 225, 918 N.W.2d 64, 2018 N.D. LEXIS 234 (N.D. 2018).

Time of Disqualification.

Disqualification of judge occurs when affidavit of prejudice is timely filed. 76 N.D. 125, 34 N.W.2d 80, 1948 N.D. LEXIS 67, decided prior to the adoption of N.D.R.Crim.P., Rule 21.

Advisement Obligation.

N.D.C.C. § 29-16-01 did not require a trial court to inform a defendant that the defendant could plead “once in jeopardy,” rather than only guilty or not guilty, because the statute mentioned no advisement obligation. State v. Scott, 2020 ND 160, 946 N.W.2d 704, 2020 N.D. LEXIS 157 (N.D. 2020).

Former Jeopardy.

The question of fact of former jeopardy should be presented to jury upon a separate plea of not guilty because of former jeopardy arising from former acquittal or conviction, and the failure to enter such a plea is a waiver of the defense of former jeopardy arising from a former conviction. State v. Barnes, 29 N.D. 164, 150 N.W. 557, 1915 N.D. LEXIS 1 (N.D. 1915).

Proving Former Jeopardy.

Since a plea of former jeopardy is not a denial of any allegations of the indictment, the burden is upon defendant to prove such plea, and if not proved, it must be answered in the negative without submission to the jury. State v. Taylor, 70 N.D. 201, 293 N.W. 219, 1940 N.D. LEXIS 161 (N.D. 1940).

Failure of Proof.

If the defendant fails to carry the burden of proof as to plea of former jeopardy, he will be deemed to have waived his right to a jury trial on that issue. State v. Taylor, 70 N.D. 201, 293 N.W. 219, 1940 N.D. LEXIS 161 (N.D. 1940).

Plea of Guilty.

A plea of guilty is not a waiver of a trial by jury. It is an admission rendering a trial by jury unnecessary. State v. Pedie, 58 N.D. 27, 224 N.W. 898, 1929 N.D. LEXIS 177 (N.D. 1929).

Waiver.

Defendant was denied his right to a jury trial where he was tried by court and record did not reveal that defendant expressly and intelligently consented to waiver of his right to a jury trial; when a written waiver is not submitted, a trial court could eliminate doubt and safeguard rights of a defendant by obtaining an express statement of defendant specifically indicating on record that a jury trial is or is not waived. State v. Kranz, 353 N.W.2d 748, 1984 N.D. LEXIS 334 (N.D. 1984).

An attorney may not waive his client’s constitutional right to a jury trial in a felony case; in such cases, an express waiver must be made personally by the defendant in writing or in open court. State v. Bakke, 498 N.W.2d 819, 1993 N.D. App. LEXIS 7 (N.D. Ct. App. 1993).

Collateral References.

Withdrawal of waiver of right to jury trial in criminal case, 46 A.L.R.2d 919.

Validity and efficacy of accused’s waiver of unanimous verdict, 97 A.L.R.3d 1253.

Waiver, after not guilty plea, of jury trial in felony case, 9 A.L.R.4th 695.

Right of accused, in state criminal trial, to insist, over prosecutor’s or court’s objection, on trial by court without jury, 37 A.L.R.4th 304.

Jury trial waiver as binding on later state civil trial, 48 A.L.R.4th 747.

Right to jury trial in action for retaliatory discharge from employment, 52 A.L.R.4th 1141.

Absolute Right.

Right to at least one day’s time for preparation is absolute. State v. Chase, 17 N.D. 429, 117 N.W. 537, 1908 N.D. LEXIS 77 (N.D. 1908).

Starting Again on Following Day.

If the parties were prepared for trial, it may be assumed that starting again the following day would not create new problems of preparation. State v. Wilson, 488 N.W.2d 618, 1992 N.D. LEXIS 170 (N.D. 1992).

Waiver of Right.

The request for one day’s time for preparation ordinarily should be made immediately after the plea, and failure to do so may result in waiver of the right. State v. Chase, 17 N.D. 429, 117 N.W. 537, 1908 N.D. LEXIS 77 (N.D. 1908); State v. Kelly, 25 N.D. 1, 140 N.W. 714, 1913 N.D. LEXIS 90 (N.D. 1913).

Constitutionality.

Legislative interference with the size of the jury for a felony trial is not authorized in Art. I, § 13, N.D. Const.; accordingly, that part of this section, which dictates a six-person jury in a felony case absent a special written demand by the defendant is unconstitutional. State v. Hegg, 410 N.W.2d 152, 1987 N.D. LEXIS 371 (N.D. 1987).

Individual Swearing.

It was not error to swear each juror individually as he appeared, and before proceeding further with the call. Territory v. O'Hare, 1 N.D. 30, 44 N.W. 1003, 1890 N.D. LEXIS 6 (N.D. 1890).

Misdemeanor Trials.

As Art. I, § 13, N.D. Const. and this section specifically authorize a six-person jury in misdemeanor cases, which is also permissible under the federal constitution, defendant’s trial by a six-person jury did not deny him due process. State v. Benson, 376 N.W.2d 36, 1985 N.D. LEXIS 460 (N.D. 1985).

Timely Objection.

Inasmuch as no objection was made by the defendant on the record to a variation in the usual trial procedure of having the jury sworn at the beginning of the trial prior to opening statements and preliminary instructions, this issue was not preserved for appeal. State v. Reil, 409 N.W.2d 99, 1987 N.D. LEXIS 359 (N.D. 1987).

Unanimous Verdicts.

—Instructions.

The better reasoned form of instruction to guide a jury in considering lesser included offenses is the “acquittal first” instruction, which requires the jury to agree unanimously to acquit on the greater offense before considering lesser offenses, rather than the “unable to agree” instruction, which instructs the jury it may consider lesser included offenses if, after reasonable efforts, the jurors cannot agree on a verdict on the greater offense. State v. Daulton, 518 N.W.2d 719, 1994 N.D. LEXIS 146 (N.D. 1994).

Collateral References.

Requirement of jury unanimity as to mode of committing crime under statute setting forth the various modes by which offense may be committed, 75 A.L.R.4th 91.

Law Reviews.

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

Application of Section.

Under this section, dismissal of the entire panel is proper when there has been a material departure in the process of selecting the panel; this section was not applicable where such process was not challenged. State v. Gross, 351 N.W.2d 428, 1984 N.D. LEXIS 313 (N.D. 1984).

Fair Cross-Section Requirement.

A party asserting a lack of randomness from the jury selection process must demonstrate a resulting exclusion of a constitutionally cognizable group. To establish there was a substantial failure to comply with the statutory process requiring reversal, the complaining party must provide a factual basis showing the jury panel selection process was prejudicial, actually excluded, systematically excluded, or statistically excluded a fair cross section of the population. State v. Palmer, 2002 ND 5, 638 N.W.2d 18, 2002 N.D. LEXIS 12 (N.D. 2002).

Defendant showed no prejudice from jurors’ aggregate familiarity with the prosecutor because (1) defendant did not claim this caused the jurors to be unrepresentative of the community, and (2) jurors were selected pursuant to statutory requirements. State v. McAllister, 2020 ND 48, 939 N.W.2d 502, 2020 N.D. LEXIS 45 (N.D. 2020).

Incapacity of Clerk.

Fact that clerk who called panel was also a justice of the peace was not sufficient ground for a challenge to the panel. State v. Lee, 78 N.D. 489, 50 N.W.2d 124, 1951 N.D. LEXIS 107 (N.D. 1951).

Motion in Arrest of Judgment Not Valid.

Alleged procedural defects in drawing a jury can be taken advantage of only by challenge of the panel before the jury is sworn, and not by motion in arrest of judgment. State v. Probst, 63 N.D. 598, 249 N.W. 711, 1933 N.D. LEXIS 211 (N.D. 1933).

Number in Box.

The fact that the jury box does not contain in all two hundred names and does not contain the full number of the names of jurors apportioned to a certain city does not constitute ground for a challenge of the panel. State v. Stoddard, 65 N.D. 238, 257 N.W. 479, 1934 N.D. LEXIS 191 (N.D. 1934).

Collateral References.

Necessity for presence of judge during voir dire examination of prospective jurors in state criminal case, 39 A.L.R.4th 465.

Validity, Construction, and Application of Right of Defendant in State Criminal Proceeding to Jury Composed Solely of United States Citizens. 36 A.L.R.6th 189.

Arrest of Judgment.

Alleged procedural defects in drawing a jury can be taken advantage of only by challenge of the panel before the jury is sworn, and not by motion in arrest of judgment. State v. Probst, 63 N.D. 598, 249 N.W. 711, 1933 N.D. LEXIS 211 (N.D. 1933).

Challenge After Sworn.

Challenge to the panel must be in writing, specifying the facts, and cannot be taken after a juror is sworn. Territory v. O'Hare, 1 N.D. 30, 44 N.W. 1003, 1890 N.D. LEXIS 6 (N.D. 1890).

Bias.

—Not Shown.

Where there is no evidence in the record that the jurors challenged for actual bias had an actual predisposition against the defendant, the trial court did not abuse its discretion in declining to excuse the jurors for cause. State v. Smaage, 547 N.W.2d 916, 1996 N.D. LEXIS 135 (N.D. 1996).

There was no obvious error affecting substantial rights because defendant failed to show that his jury was not impartial, and therefore defendant’s argument that his jury was not impartial because the jury questionnaires revealed that approximately one-third of the persons in the jury pool or their spouses were employed by state or county governments was rejected, because the record showed that the district court asked the jurors whether they could remain fair and impartial and they replied that they could. State v. Fischer, 2008 ND 32, 744 N.W.2d 760, 2008 N.D. LEXIS 21 (N.D. 2008).

Policemen As Jurors.

Part-time policemen are not automatically excluded as jurors; any exclusion must be based upon a showing of actual bias on a challenge of cause at the voir dire examination. State v. Ternes, 259 N.W.2d 296, 1977 N.D. LEXIS 211 (N.D. 1977), cert. denied, 435 U.S. 944, 98 S. Ct. 1524, 55 L. Ed. 2d 540, 1978 U.S. LEXIS 1280 (U.S. 1978).

Recall of Jury Panel After Dismissal.

Where defendant and state entered into a plea agreement immediately prior to trial and trial court dismissed, the jury panel telling them that they were not needed because a settlement had been reached, trial court’s recalling of the same jury panel after defendant revoked the plea agreement did not constitute actual bias per se. State v. Gross, 351 N.W.2d 428, 1984 N.D. LEXIS 313 (N.D. 1984).

State of Mind.

Although a juror testifies on his voir dire examination that the arrest and trial of one accused of crime might indicate to his mind “that there was something in it”, he is not disqualified. State v. Lesh, 27 N.D. 165, 145 N.W. 829, 1914 N.D. LEXIS 39 (N.D. 1914).

Trial court did not abuse its discretion in overruling defendant’s challenge for cause where prospective juror’s testimony during voir dire that she could not be impartial was the result of confusion which arose due to the nature of defense counsel’s questions, and further questioning by the trial court revealed that the prospective juror had expressed no opinion on defendant’s guilt or innocence and that she could be impartial and base her decision on the evidence. State v. McLain, 301 N.W.2d 616, 1981 N.D. LEXIS 227 (N.D. 1981).

Collateral References.

Necessity for presence of judge during voir dire examination of prospective jurors in state criminal case, 39 A.L.R.4th 465.

Fact that juror in criminal case, or juror’s relative or friend, has previously been victim of criminal incident as ground of disqualification, 65 A.L.R.4th 743.

Propriety of inquiry on voir dire as to juror’s attitude toward, or acquaintance with literature dealing with, amount of damage awards, 63 A.L.R.5th 285.

Examination and challenge of state case jurors on basis of attitudes toward homosexuality,80 A.L.R.5th 469.

Government Employment.

Government employment, by itself, does not disqualify a person from serving as a juror, but a government employee, like others, may be challenged for actual bias. City of Bismarck v. Holden, 522 N.W.2d 471, 1994 N.D. LEXIS 215 (N.D. 1994).

There was no obvious error affecting substantial rights because defendant failed to show that his jury was not impartial, and therefore defendant’s argument that his jury was not impartial because the jury questionnaires revealed that approximately one-third of the persons in the jury pool or their spouses were employed by state or county governments was rejected, because the record showed that the district court asked the jurors whether they could remain fair and impartial and they replied that they could. State v. Fischer, 2008 ND 32, 744 N.W.2d 760, 2008 N.D. LEXIS 21 (N.D. 2008).

Juror Serving on Jury Which Has Tried Another Person for Offense Charged.

This section permits a challenge for cause on the ground of implied bias of a juror who served on a trial jury which has tried another person for violating the same law or statutory provision for which the defendant has been charged, irrespective of whether or not the other person’s charge involves the same event or incident upon which the defendant’s charge is based. State v. Rummel, 326 N.W.2d 64, 1982 N.D. LEXIS 332 (N.D. 1982).

Policeman as Juror.

Being a badge-carrying police officer and the son of a part-time police officer are not grounds to challenge a prospective juror for implied bias. State v. Ternes, 259 N.W.2d 296, 1977 N.D. LEXIS 211 (N.D. 1977), cert. denied, 435 U.S. 944, 98 S. Ct. 1524, 55 L. Ed. 2d 540, 1978 U.S. LEXIS 1280 (U.S. 1978).

Relationship with Counsel.

Where the challenged juror never had a direct attorney-client relationship with the prosecuting attorney, and the relationship that they did have had ended by the time of trial, the trial court did not abuse its discretion in declining to excuse the juror under subsection (2). State v. Smaage, 547 N.W.2d 916, 1996 N.D. LEXIS 135 (N.D. 1996).

In trial of attorney for driving under the influence, trial court did not abuse its discretion by refusing to excuse for cause a juror who was a former client of attorney’s law firm, where the record failed to show a direct and current client relationship. State v. Thompson, 552 N.W.2d 386, 1996 N.D. LEXIS 199 (N.D. 1996).

Pursuant to N.D.C.C. § 29-17-36, a challenge for cause had to be granted if an implied bias had been established, and the district court abused its discretion in failing to grant defendant’s challenge for cause of two jurors because of their current attorney-client relationship with the prosecutor; however, because defendant used a peremptory challenge to exclude one of the jurors and the other juror was released as an alternate juror before the jury began its deliberations, no biased jurors sat on his case and defendant was not deprived of any rights. State v. Jaster, 2004 ND 223, 690 N.W.2d 213, 2004 N.D. LEXIS 368 (N.D. 2004).

District court did not abuse its discretion in denying defendant's challenge of two jurors for cause, both of whom had previously had a professional relationship with the state's attorneys who were prosecuting defendant. The record showed that any attorney-client relationship between the potential jurors and the state's attorney and assistant state's attorney had ended many years ago. State v. Garnder, 2016 ND 161, 883 N.W.2d 471, 2016 N.D. LEXIS 163 (N.D. 2016).

Defendant’s challenges to jurors who knew or had been represented by the prosecutor were correctly denied because (1) the prosecutor did not currently represent any juror, and (2) jurors affirmed the jurors would be impartial. State v. McAllister, 2020 ND 48, 939 N.W.2d 502, 2020 N.D. LEXIS 45 (N.D. 2020).

Collateral References.

Failure of juror in criminal case to disclose his previous jury service within disqualifying period as ground for reversal, 13 A.L.R.2d 1482.

Religious belief — challenge on voir dire, 95 A.L.R.3d 172.

Beliefs regarding capital punishment as disqualifying juror in capital case for cause, 39 A.L.R.3d 550.

Former law enforcement officers as jurors, 72 A.L.R.3d 958.

Conversation.

Fact that juror talked with one who knew the facts, although not a witness, would not disqualify him. State v. Ekanger, 8 N.D. 559, 80 N.W. 482, 1899 N.D. LEXIS 49 (N.D. 1899).

Formation of Opinion.

Fact that person called as juror may have formed an opinion or received an impression concerning the case from conversations or newspaper reports does not of itself disqualify the juror, even where it would require evidence to remove the impression or opinion. State v. Ekanger, 8 N.D. 559, 80 N.W. 482, 1899 N.D. LEXIS 49 (N.D. 1899).

Newspapers.

Persons who subscribed to a newspaper which carried story of crime of which accused is charged shall not be subject to challenge as jurors for this cause alone. Territory v. Egan, 13 N.W. 568, 3 Dakota 119, 1882 Dakota LEXIS 10 (Dakota 1882).

The fact that a person has read the newspaper accounts of the alleged crime does not ordinarily disqualify such person to serve as a juror. State v. Pusch, 77 N.D. 860, 46 N.W.2d 508, 1950 N.D. LEXIS 173 (N.D. 1950).

Satisfaction of Court.

Decision of trial court that impression on proposed juror’s mind will not prevent him from fairly and impartially trying the case is not conclusive, but is entitled to great respect. State v. Ekanger, 8 N.D. 559, 80 N.W. 482, 1899 N.D. LEXIS 49 (N.D. 1899).

Speedy Trial Denied.

Defendant’s right to a speedy trial was violated because (1) defendant timely elected defendant’s right to a speedy trial, and, (2) after denying the State’s motion to continue, finding no good cause was shown, the court rescheduled the case twice outside the required 90-day time period without explanation or finding good cause. State v. Watson, 2019 ND 164, 930 N.W.2d 145, 2019 N.D. LEXIS 170 (N.D. 2019).

Speedy Trial Not Denied.

Defendant was not denied his right to a speedy trial where his attempts to invoke Interstate Agreement on Detainers did not constitute a proper request for a speedy trial, much of the delay was attributable to motions filed by the defendant, and the defendant did not demonstrate that his ability to defend against charges was impaired by the delay. State v. Moe, 1998 ND 137, 581 N.W.2d 468, 1998 N.D. LEXIS 147 (N.D. 1998).

Defendant’s request for a speedy trial was denied where he did not elect this right within fourteen days of his arraignment, which was held on June 19, 2006; thus, while defendant did request a speedy trial, his request to be tried within the ninety-day period was untimely. Everett v. State, 2008 ND 199, 757 N.W.2d 530, 2008 N.D. LEXIS 222 (N.D. 2008).

Defendant was not deprived of his speedy trial rights under the United States or North Dakota Constitutions because the reason for the delay was precipitated by defendant's act of effectively firing his first counsel; the extent of the delay involved reasonable scheduling considerations for an anticipated five-day jury trial and the designation of a second court-appointed counsel. State v. Owens, 2015 ND 68, 860 N.W.2d 817, 2015 N.D. LEXIS 66 (N.D. 2015).

District court properly rejected defendant's claim that the State violated his right to a speedy trial because, while the district court scheduled a trial 96 days after defendant submitted his request to the Department of Corrections and 82 days after the district court and State's attorney had each received it, the 90-day period began when the district court and the State's attorney received defendant's request for a speedy trial and charges were statutorily required to be dismissed if not brought to trial within 90 days after the receipt of the request and certificate by the court and prosecuting official. State v. Gibson, 2017 ND 15, 889 N.W.2d 852, 2017 N.D. LEXIS 19 (N.D. 2017).

Denying defendant's speedy trial claim under N.D.C.C. § 29-19-02 was not error where the speedy trial demand was made more than 90 days after arraignment, which constituted good cause, and the district court had attempted to schedule the trial as soon as possible. State v. Hall, 2017 ND 124, 894 N.W.2d 836, 2017 N.D. LEXIS 120 (N.D. 2017).

Postconviction petitioner's statutory election of a speedy trial right was untimely where the trial was held within 90 days of arraignment. Koenig v. State, 2018 ND 59, 907 N.W.2d 344, 2018 N.D. LEXIS 42 (N.D. 2018).

Defendant’s right to a speedy trial was not violated in two counties because (1) continuances were granted based on the primary witness’s unavailability, (2) delays were short, considering the severity of the crimes, (3) there was no fault by the State, which provided statutorily required information, (4) the State did not have to subpoena the witness, and (5) defendant was not prejudiced, as, while defendant was incarcerated awaiting trial, defendant did not claim another month of incarceration was “oppressive” or caused anxiety or impaired the defense. State v. Watson, 2019 ND 164, 930 N.W.2d 145, 2019 N.D. LEXIS 170 (N.D. 2019).

State’s requests for a second and a third continuance were properly granted as a formal motion was not required, and the delays benefitted defendant by providing him the DNA evidence he wanted, increasing the jury pool, and allowing more time for trial. State v. Mondragon, 2020 ND 21, 937 N.W.2d 531, 2020 N.D. LEXIS 20 (N.D. 2020).

Even if the State had not complied with N.D.C.C. § 29-19-06, granting the first continuance was not an abuse of discretion as the two-day delay was not presumptively prejudicial, defendant did not argue prejudice, the charged offenses were not minor, and two witnesses, evidence, and the prosecutor were unavailable. State v. Mondragon, 2020 ND 21, 937 N.W.2d 531, 2020 N.D. LEXIS 20 (N.D. 2020).

State’s motion for a continuance was properly granted where although the court did not address the N.D.C.C. § 29-19-06 factors, the State’s supporting affidavit noted the unavailability of the prosecutor and court ruling on in camera review that required the State to provide defendant with additional redacted records. State v. Mondragon, 2020 ND 21, 937 N.W.2d 531, 2020 N.D. LEXIS 20 (N.D. 2020).

District court did not violate defendant’s right to a speedy trial by continuing the trial because his letter requesting dismissal based on a violation of his right to a speedy trial was written to the court while he was represented by counsel, he asserted no factual or legal support for the request, did not include any discussion of the four-part test to be used in reviewing potential speedy trial violations, did not renew or expand on that request with regard to the rescheduling of the trial date or the trial date, and although the general statutory right to a speedy trial applied, the speedy trial period of 90 days did not apply since defendant was not charged under the statutory provisions that triggered the provision. State v. Wayland, 2020 ND 106, 942 N.W.2d 841, 2020 N.D. LEXIS 106 (N.D. 2020).

Speedy Trial Right.

Because defendant had a right to a speedy trial and was presumed innocent, his continued pretrial detention at the State Hospital had to be determined under the statutory procedures and safeguards of N.D.C.C. ch. 25-03.1. State v. Holbach, 2014 ND 14, 842 N.W.2d 328, 2014 N.D. LEXIS 16 (N.D.), cert. denied, 574 U.S. 984, 135 S. Ct. 462, 190 L. Ed. 2d 347, 2014 U.S. LEXIS 7253 (U.S. 2014).

Waiver.

A plea of guilty constitutes a waiver of the right to a speedy trial. State v. Wunderlich, 338 N.W.2d 658, 1983 N.D. LEXIS 351 (N.D. 1983).

Avoiding Continuance.

In order to avoid continuance on defendant’s application, state may stipulate as to what absent witness would have testified. State v. Uhler, 32 N.D. 483, 156 N.W. 220, 1916 N.D. LEXIS 131 (N.D. 1916).

Insufficient Cause.

Statement of defendant that he had been advised by his physician that he was unwell would not justify a continuance. State v. Gordon, 32 N.D. 31, 155 N.W. 59, 1915 N.D. LEXIS 59 (N.D. 1915).

Affidavit which does not set forth real proof of public excitement or prejudice is not sufficient. State v. Gordon, 32 N.D. 31, 155 N.W. 59, 1915 N.D. LEXIS 59 (N.D. 1915).

Motion Denied.

District court did not abuse its discretion in denying defendant's request for a continuance or a dismissal because defendant did not established that he was prejudiced by the State's conduct; the State was not required to call as witnesses all individuals endorsed on the information, and defendant did not appear to have subpoenaed police officers to testify nor did he call them as hostile witnesses. State v. Newark, 2017 ND 209, 900 N.W.2d 807, 2017 N.D. LEXIS 218 (N.D. 2017).

Speedy Trial Not Denied.

Defendant’s right to a speedy trial was not violated in two counties because (1) continuances were granted based on the primary witness’s unavailability, (2) delays were short, considering the severity of the crimes, (3) there was no fault by the State, which provided statutorily required information, (4) the State did not have to subpoena the witness, and (5) defendant was not prejudiced, as, while defendant was incarcerated awaiting trial, defendant did not claim another month of incarceration was “oppressive” or caused anxiety or impaired the defense. State v. Watson, 2019 ND 164, 930 N.W.2d 145, 2019 N.D. LEXIS 170 (N.D. 2019).

State’s motion for a continuance was properly granted where although the court did not address the N.D.C.C. § 29-19-06 factors, the State’s supporting affidavit noted the unavailability of the prosecutor and court ruling on in camera review that required the State to provide defendant with additional redacted records. State v. Mondragon, 2020 ND 21, 937 N.W.2d 531, 2020 N.D. LEXIS 20 (N.D. 2020).

Even if the State had not complied with N.D.C.C. § 29-19-06, granting the first continuance was not an abuse of discretion as the two-day delay was not presumptively prejudicial, defendant did not argue prejudice, the charged offenses were not minor, and two witnesses, evidence, and the prosecutor were unavailable. State v. Mondragon, 2020 ND 21, 937 N.W.2d 531, 2020 N.D. LEXIS 20 (N.D. 2020).

State’s requests for a second and a third continuance were properly granted as a formal motion was not required, and the delays benefitted defendant by providing him the DNA evidence he wanted, increasing the jury pool, and allowing more time for trial. State v. Mondragon, 2020 ND 21, 937 N.W.2d 531, 2020 N.D. LEXIS 20 (N.D. 2020).

Continuance to Obtain Testimony.

The affidavits for a continuance to obtain testimony must be explicit. State v. Murphy, 9 N.D. 175, 82 N.W. 738, 1900 N.D. LEXIS 212 (N.D. 1900).

Waiver of Objection.

Acquiescence of defendant on oral application made by state for a continuance was a bar to later objection on this point. State v. Braathen, 77 N.D. 309, 43 N.W.2d 202, 1950 N.D. LEXIS 131 (N.D. 1950).

Charge.

The charge of the court may be oral, unless it is requested in writing. Territory v. Christensen, 31 N.W. 847, 4 Dakota 410, 1887 Dakota LEXIS 6 (Dakota 1887).

The court must mark requests for instructions either “given” or “refused”. State v. Campbell, 7 N.D. 58, 72 N.W. 935, 1897 N.D. LEXIS 45 (N.D. 1897).

The trial court, in charging the jury, cannot give expression to its views upon the credibility, weight or effect of testimony. State v. Barry, 11 N.D. 428, 92 N.W. 809, 1902 N.D. LEXIS 153 (N.D. 1902).

A trial judge is prohibited from expressing an opinion upon the facts. State v. Hazlett, 14 N.D. 490, 105 N.W. 617, 1905 N.D. LEXIS 80 (N.D. 1905).

Discretion As to Order.

Trial court is vested with a broad discretion in regard to the order of proof at trials, and, except in cases of clear abuse of such discretion, his decision will not be disturbed. State v. Werner, 16 N.D. 83, 112 N.W. 60, 1907 N.D. LEXIS 26 (N.D. 1907).

It is within the discretion of the court to allow the prosecution to give evidence in aid of the case already made, after the defense has rested, although the evidence is in contradiction of matters sworn to by the prisoner. State v. Schneider, 53 N.D. 931, 208 N.W. 566, 1926 N.D. LEXIS 39 (N.D. 1926).

It is within the discretion of the trial court to allow the state in a criminal prosecution to give evidence in aid of its case already made after the defense has rested. State v. Puhr, 316 N.W.2d 75, 1982 N.D. LEXIS 228 (N.D. 1982).

Opening Statement by Prosecutor.

It was not error for prosecutor to read the bill of particulars and the amended indictment to the jury during his opening statement. State v. Skjonsby, 319 N.W.2d 764, 1982 N.D. LEXIS 265 (N.D. 1982).

Order of Trial.

District court’s denial of defendant’s motion for a mistrial was not an abuse of discretion because the district court did not alter the order of trial but addressed the situation of a witness who had earlier appeared at trial but was unexpectedly no longer available to appear. State v. Tyler, 2019 ND 246, 933 N.W.2d 918, 2019 N.D. LEXIS 245 (N.D. 2019).

Postponing Ruling.

Trial court did not act arbitrarily, unconscionably, or unreasonably in postponing its ruling on the admissibility, for purposes of impeachment, of a statement made by defendant, which defendant claimed unfairly influenced his decision to testify on his own behalf. State v. Carlson, 1997 ND 7, 559 N.W.2d 802, 1997 N.D. LEXIS 6 (N.D. 1997).

Reading of Complaint.

In a gross sexual imposition case where the jury had to unanimously agree which sexual act or acts the defendant engaged in to find him guilty, a district court's failure to include information in the jury instructions identifying the underlying act for each count of the offense or to instruct the jury that it had to unanimously agree on the underlying act for each count constituted an obvious error; the complaint was not read to the jury and a copy of the complaint was not given to the jury with the jury instructions. State v. Martinez, 2015 ND 173, 865 N.W.2d 391, 2015 N.D. LEXIS 195 (N.D. 2015).

Reading of Indictment.

Where the prosecuting attorney has stated the offense charged, and the defendant’s plea, to each juror as he was impaneled, and after the jury had been sworn to try the case, he, in his opening remarks, stated to them the allegations of the indictment in substance, and the plea and the proposed proof, the jurors were sufficiently informed to try the issue regardless of the specific requirement that the indictment and the plea of the defendant must be read to the jurors. Territory v. King, 50 N.W. 623, 6 Dakota 131, 1889 Dakota LEXIS 48 (Dakota 1889).

Inadvertent reading of the information by the trial court, rather than by the clerk or state’s attorney, did not prevent defendant from having a fair trial. State v. Ellvanger, 453 N.W.2d 810, 1990 N.D. LEXIS 72 (N.D. 1990).

Reopening Case.

Decision as to whether or not to allow a party to reopen his case is a matter that lies within trial court’s discretion. State v. Mayer, 356 N.W.2d 149, 1984 N.D. LEXIS 403 (N.D. 1984).

Because the state had attempted to locate witness earlier, because witness was not a surprise witness, and because the trial court addressed the jury in an impartial manner regarding witness’s belated testimony, the court did not abuse its discretion by allowing the state to reopen its case after it had rested. State v. Jones, 557 N.W.2d 375, 1996 N.D. LEXIS 266 (N.D. 1996).

Stating Plea to Jury.

Where there was an initial failure by the state or the clerk to inform the jury that defendant had pled not guilty to the charges in the indictment, trial court did not abuse its discretion in permitting the state to recite defendant’s not guilty plea to the jury after a witness had testified. State v. Skjonsby, 319 N.W.2d 764, 1982 N.D. LEXIS 265 (N.D. 1982).

Surrebuttal.

The right of surrebuttal is discretionary with the trial court. State v. Goulet, 1999 ND 80, 593 N.W.2d 345, 1999 N.D. LEXIS 85 (N.D. 1999).

Defendant who made no offer of proof pertaining to his proposed surrebuttal evidence failed to preserve the issue for appellate review. State v. Goulet, 1999 ND 80, 593 N.W.2d 345, 1999 N.D. LEXIS 85 (N.D. 1999).

Variation in Swearing Jury.

Inasmuch as no objection was made by the defendant on the record to a variation in the usual trial procedure of having the jury sworn at the beginning of the trial prior to opening statements and preliminary instructions, this issue was not preserved for appeal. State v. Reil, 409 N.W.2d 99, 1987 N.D. LEXIS 359 (N.D. 1987).

Collateral References.

Prosecutor’s appeal in criminal case to self-interest or prejudice of jurors as taxpayers as ground for reversal, new trial, or mistrial, 60 A.L.R.4th 1063.

Chain of Custody.

It was not error for trial court to allow state to recall police witness to correct his testimony from the previous day and establish necessary chain of custody in marijuana case. State v. Berger, 285 N.W.2d 533, 1979 N.D. LEXIS 308 (N.D. 1979).

Discretion of Court.

Permitting state to recall defense witness after the defense rested, although witness had immediately prior thereto been interrogated by counsel for both parties and by the court, was a matter within trial court’s discretion, and was not in excess of its powers under this section. State v. Otto, 245 N.W.2d 885, 1976 N.D. LEXIS 136 (N.D. 1976).

Decision as to whether or not to allow a party to reopen his case is a matter that lies within trial court’s discretion. State v. Mayer, 356 N.W.2d 149, 1984 N.D. LEXIS 403 (N.D. 1984).

Because the state had attempted to locate witness earlier, because witness was not a surprise witness, and because the trial court addressed the jury in an impartial manner regarding witness’s belated testimony, the court did not abuse its discretion by allowing the state to reopen its case after it had rested. State v. Jones, 557 N.W.2d 375, 1996 N.D. LEXIS 266 (N.D. 1996).

Variation in Swearing Jury.

Inasmuch as no objection was made by the defendant on the record to a variation in the usual trial procedure of having the jury sworn at the beginning of the trial prior to opening statements and preliminary instructions, this issue was not preserved for appeal. State v. Reil, 409 N.W.2d 99, 1987 N.D. LEXIS 359 (N.D. 1987).

Duty of Court.

It is the duty of the trial court to decide all questions of law. Territory v. Stone, 4 N.W. 697, 2 Dakota 155, 1879 Dakota LEXIS 4 (Dakota 1879); STATE ex rel. JOHNSON v. THOMSON, 76 N.D. 125, 34 N.W.2d 80, 1948 N.D. LEXIS 66 (N.D. 1948), decided prior to the adoption of N.D.R.Crim.P., Rule 21.

Whether or not an unloaded BB gun was a dangerous weapon was a question of fact for the jury’s determination; once the jury made that factual finding, and the others required to reach a verdict, the question of sentencing, a legal question, was for the court to decide. State v. Clinkscales, 536 N.W.2d 661, 1995 N.D. LEXIS 152 (N.D. 1995).

Probable Cause.

The question of probable cause is one of law to be determined by the court for the purpose of admitting or suppressing evidence. City of Langdon v. Delvo, 390 N.W.2d 51, 1986 N.D. LEXIS 363 (N.D. 1986).

Error of Law.

If trial court commits error of law and excludes competent evidence which thereby deprives defendant of his only real defense, such erroneous action is subject to reversal if and when properly challenged, but binding until reversed. STATE ex rel. JOHNSON v. THOMSON, 76 N.D. 125, 34 N.W.2d 80, 1948 N.D. LEXIS 66 (N.D. 1948), decided prior to the adoption of N.D.R.Crim.P., Rule 21.

Responsibility of Jury.

Whether or not an unloaded BB gun was a dangerous weapon was a question of fact for the jury’s determination; once the jury made that factual finding, and the others required to reach a verdict, the question of sentencing, a legal question, was for the court to decide. State v. Clinkscales, 536 N.W.2d 661, 1995 N.D. LEXIS 152 (N.D. 1995).

State’s comments in closing argument about what North Dakota law provided, in response to defendant’s closing argument, did not result in defendant receiving in unfair trial in a case where defendant was convicted of actual physical control in violation of N.D.C.C. § 39-08-01. The trial court on defendant’s objection instructed the jury to disregard the comment and follow the instructions that the trial court gave the jury, and not only was the jury presumed to have followed the trial court’s jury instructions, but it was required to follow the law pursuant to N.D.C.C. § 29-21-04. State v. Garcia, 2012 ND 11, 812 N.W.2d 328, 2012 N.D. LEXIS 16 (N.D. 2012).

Collateral References.

Weight and sufficiency of fingerprint, palm print, or bare footprint evidence as question for jury, 28 A.L.R.2d 1115, 1136.

Entrapment to commit offense with respect to gambling or lotteries, as question for jury, 31 A.L.R.2d 1212.

Entrapment to commit offense with respect to narcotics law as question for jury, 33 A.L.R.2d 883.

Issue of concealment as jury question in prosecution for carrying concealed weapon, 43 A.L.R.2d 492.

Application in specific instances of statute making reckless driving a criminal offense as presenting question of fact, 52 A.L.R.2d 1337.

Extent of premises which may be defended without retreat under right of self-defense as question of law or fact, 52 A.L.R.2d 1458.

Spontaneity of declaration sought to be admitted as part of res gestae as question for court or ultimately for jury, 56 A.L.R.2d 372.

Credibility of witness giving uncontradicted testimony as matter for court or jury in criminal case, 62 A.L.R.2d 1191.

Question of law and fact in prosecution against motor vehicle operator for fatal accident arising from physical defect, illness, drowsiness, or falling asleep, 63 A.L.R.2d 983.

Plea of guilty, determination of punishment in capital case by court or jury on, 89 A.L.R.2d 540.

Trailing by dogs, weight and sufficiency of evidence as to, as for jury, 18 A.L.R.3d 1221.

Entrapment defense in sex offense prosecutions, 12 A.L.R.4th 413.

Materiality of testimony forming basis of perjury charge as question for court or jury, 37 A.L.R.4th 948.

Admissibility and weight of blood-grouping tests in disputed paternity cases, 43 A.L.R.4th 579.

Admissibility of bare footprint evidence, 45 A.L.R.4th 1178.

Evidence of Trailing by Dogs in Criminal Cases, 81 A.L.R.5th 563.

Appeal.

To successfully challenge the sufficiency of evidence on appeal, defendant must show that the evidence, when viewed in the light most favorable to the verdict, permits no reasonable inference of guilt. State v. Fasching, 461 N.W.2d 102, 1990 N.D. LEXIS 197 (N.D. 1990).

Presumption of Innocence.

Because defendant had a right to a speedy trial and was presumed innocent, his continued pretrial detention at the State Hospital had to be determined under the statutory procedures and safeguards of N.D.C.C. ch. 25-03.1. State v. Holbach, 2014 ND 14, 842 N.W.2d 328, 2014 N.D. LEXIS 16 (N.D.), cert. denied, 574 U.S. 984, 135 S. Ct. 462, 190 L. Ed. 2d 347, 2014 U.S. LEXIS 7253 (U.S. 2014).

Probable Cause Distinguished.

Attempted robbery charge against codefendant required proof beyond a reasonable doubt, a very high burden of proof, and district court’s mid-trial acquittal in codefendant’s case did not in any way undercut juvenile court’s finding of probable cause in transfer hearing, a minimal burden of proof, to believe the juvenile assisted in an attempted robbery. Dawson v. Martinez (In re C.R.M.), 552 N.W.2d 324, 1996 N.D. LEXIS 162 (N.D. 1996).

Reasonable Doubt.

There must be in the minds of the jury an abiding conviction to a moral certainty of the truth of the charge, derived from a comparison and consideration of the evidence. Territory v. Bannigan, 46 N.W. 597, 1 Dakota 451, 1877 Dakota LEXIS 11 (Dakota 1877).

In case of reasonable doubt, it is presumed that the defendant is innocent. State v. Campbell, 7 N.D. 58, 72 N.W. 935, 1897 N.D. LEXIS 45 (N.D. 1897).

Every defendant in a criminal action is presumed to be innocent until the contrary is proved beyond a reasonable doubt. State v. Anderson, 116 N.W.2d 623, 1962 N.D. LEXIS 82 (N.D. 1962).

Request for Instructions.

It is reversible error to refuse request to give proper instructions on presumption of innocence, but accused cannot complain of omission to so instruct when he makes no request. State v. Bowe, 57 N.D. 89, 220 N.W. 843, 1928 N.D. LEXIS 99 (N.D. 1928).

Sufficiency of Evidence.

A defendant was improperly convicted of the crime of purchasing intoxicating liquor for persons under the age of twenty-one years in violation of section 5-01-26 (since repealed) where the evidence, although showing that defendant had bought beer for minors, did not show that the beer contained more than four percent of alcohol by weight within the statutory definition of “intoxicating liquor” under subsection 2 of section 5-01-01 (since repealed). State v. Anderson, 116 N.W.2d 623, 1962 N.D. LEXIS 82 (N.D. 1962).

Collateral References.

Sufficiency of evidence of malice or intent to kill where killing is by blow without weapon, 22 A.L.R.2d 854.

Degree of proof of pregnancy in prosecution for abortion, 46 A.L.R.2d 1393.

Sufficiency of evidence in prosecution for forgery based on use of fictitious or assumed name, 49 A.L.R.2d 852, 876.

Proof under statute making solicitation to commit crime a substantive offense, 51 A.L.R.2d 953.

Sufficiency of evidence as to reckless driving of motor vehicle under statute making such a criminal offense, 52 A.L.R.2d 1337.

Sufficiency of evidence to establish criminal responsibility of one, other than driver at time of accident, under “hit-and-run” statute, 62 A.L.R.2d 1130, 1131.

Circumstantial evidence, may conviction of perjury rest upon, 88 A.L.R.2d 852.

Admissibility and weight of blood-grouping tests in disputed paternity cases, 43 A.L.R.4th 579.

Degrees of Burglary.

Where defendant could only have been guilty of first degree burglary or innocent of the charge, it was not error to read all the definitions of burglary found in the Penal Code to the jury. State v. Campbell, 7 N.D. 58, 72 N.W. 935, 1897 N.D. LEXIS 45 (N.D. 1897).

First Degree Murder.

Where indictment charges murder in the first degree and there is reasonable doubt as to the degree of defendant’s guilt, he can be convicted of lowest degree only. State v. Whiteman, 79 N.W.2d 528, 1956 N.D. LEXIS 159, 1956 N.D. LEXIS 160 (N.D. 1956).

Abuse of Discretion.

Granting of separate trial is largely within discretion of trial court and refusal to do so will not be set aside unless there has been a clear abuse of discretion. State v. Whiteman, 79 N.W.2d 528, 1956 N.D. LEXIS 159, 1956 N.D. LEXIS 160 (N.D. 1956).

Denial of Separate Trials.

Separate trials were properly denied where no evidence was introduced that would not have been admissible against each defendant if tried separately. State v. Sanders, 58 N.D. 773, 228 N.W. 190, 1929 N.D. LEXIS 280 (N.D. 1929).

When no reasons for separate trial are shown, it is not error to deny motion therefor. State v. Russell, 66 N.D. 272, 264 N.W. 532, 1935 N.D. LEXIS 193 (N.D. 1935).

Identical Evidence.

It was neither error nor an abuse of discretion to order consolidation for trial of prosecution of two defendants where they were being prosecuted on identical charges arising out of same events and where evidence as to each defendant was identical and they could have been charged in single information. State v. Weisser, 161 N.W.2d 360, 1968 N.D. LEXIS 84 (N.D. 1968).

Collateral References.

Right to severance where codefendant has incriminated himself, 54 A.L.R.2d 830.

Blood Tests.

Refusal of defendant to submit to blood test for alcohol content cannot be commented upon at the trial by the prosecution. State v. Severson, 75 N.W.2d 316, 1956 N.D. LEXIS 100 (N.D. 1956), decided prior to the enactment of N.D.C.C. § 39-20-08.

Comment by Court.

The court may call attention to the privilege of the defendant in refusing to testify, because the purpose of the statute is to prevent unfavorable comment upon the facts by the state’s attorney. State v. Wisnewski, 13 N.D. 649, 102 N.W. 883, 1905 N.D. LEXIS 10 (N.D. 1905); State v. Dodson, 23 N.D. 305, 136 N.W. 789, 1912 N.D. LEXIS 95 (N.D. 1912); State v. Gates, 52 N.D. 659, 204 N.W. 350, 1925 N.D. LEXIS 133 (N.D. 1925); State v. McCauley, 68 N.D. 198, 277 N.W. 605, 1938 N.D. LEXIS 97 (N.D. 1938); State v. Simpson, 78 N.D. 571, 50 N.W.2d 661, 1951 N.D. LEXIS 112 (N.D. 1951).

Comment by Prosecutor.

In prosecution for grand larceny of livestock, statement made by prosecutor in open court (while objecting to question inquiring whether codefendant had mentioned any animals to defense witness), that if codefendant had any statement he should get up on the stand himself, was not prejudicial error where other codefendant had already testified, state had no knowledge whether codefendant concerned would take stand, statement obviously was not made for purpose of drawing jury’s attention to fact that defendant had not taken stand, and trial court advised jury that statement was stricken and should not be considered in arriving at verdict. State v. Marmon, 154 N.W.2d 55, 1967 N.D. LEXIS 89 (N.D. 1967).

Prosecutor’s question to prospective jurors during voir dire proceeding, asking if anybody believed that the state must come forward with a confession from the defendant in every case, did not violate defendant’s constitutional right against self-incrimination or his rights under this section. State v. Nordquist, 309 N.W.2d 109, 1981 N.D. LEXIS 344 (N.D. 1981).

Prosecutor’s statement made during voir dire of the jury, when taken in the context in which it was made, that “someone will not get up and say I did it” did not constitute an improper comment on defendant’s fifth amendment rights and did not violate the rights afforded him by this section. State v. Skjonsby, 319 N.W.2d 764, 1982 N.D. LEXIS 265 (N.D. 1982).

Defendant’s rights under the Fifth Amendment, the Fourteenth Amendment, N.D.C.C. § 29-21-11, and N.D. Const. art. I, § 12 were not violated by a statement made by a prosecutor during closing arguments because the statement referred to defendant’s failure to deny that a motel room, in which marijuana, cash, drug paraphernalia, and luggage containing men’s and women’s clothing were found, was his when he made voluntary assertions to police prior to the reading of his rights and the statement referred to evidence, not to defendant’s silence. State v. Myers, 2006 ND 242, 724 N.W.2d 168, 2006 N.D. LEXIS 248 (N.D. 2006).

Failure to Testify.

Accused’s not testifying in his own behalf did not prejudice him in the eyes of the jury where prosecuting attorney did not comment on failure to testify and trial judge properly instructed jury concerning this section. State v. Ankney, 195 N.W.2d 547, 1972 N.D. LEXIS 118 (N.D. 1972).

Collateral References.

Requirement that court advise accused of, and make inquiry with respect to, waiver of right to testify, 72 A.L.R.5th 403.

Acquittal of Defendant.

State could not appeal the district court's judgment of acquittal because it was a true acquittal where the district court's oral ruling was not a dismissal on procedural grounds unrelated to factual guilt or innocence, but rather was a determination that the State's evidence, which was based an accomplice's testimony, was insufficient to sustain a conviction. State v. Weight, 2015 ND 219, 868 N.W.2d 821, 2015 N.D. LEXIS 226 (N.D. 2015).

Sufficient corroboration.

In a case in which defendant was found guilty of conspiracy to deliver a controlled substance, the record contained corroborating evidence to satisfy this statute because law enforcement officers testified the surveillance video captured the overdose victim and another individual arriving at the apartment building where they and defendant’s sister, an accomplice, all stated the drug transaction took place; and the other individual testified about the overdose victim showing her the pills at defendant’s apartment inscribed with the letter “M” and number “30,” and those were the pills he overdosed on later that day.

Failure to instruct.

In a case in which defendant was found guilty of conspiracy to deliver a controlled substance, any error associated with the lack of a jury instruction on the need to corroborate accomplice testimony was harmless as there was sufficient evidence corroborating the accomplice testimony.

“Accomplice.”

The purchaser in a sale of marijuana cannot be charged with the same offense with which the seller is charged; therefore, the purchaser is not an accomplice and his testimony as witness in prosecution of seller did not require corroboration. State v. Dwyer, 172 N.W.2d 591, 1969 N.D. LEXIS 68 (N.D. 1969).

Where evidence that witness is an accomplice is undisputed and not susceptible to different inferences, the witness is an accomplice as a matter of law; but, where such evidence is either disputed or susceptible to different inferences, the question of whether the witness is an accomplice is a question of fact. State v. Thorson, 264 N.W.2d 441, 1978 N.D. LEXIS 238 (N.D. 1978).

Where defendant delivered marijuana and hashish to two individuals and was charged with delivering controlled substances, the two individuals were not accomplices since they could not be charged with delivery to themselves. State v. Ennis, 334 N.W.2d 827, 1983 N.D. LEXIS 423 (N.D.), cert. denied, 464 U.S. 992, 104 S. Ct. 484, 78 L. Ed. 2d 681, 1983 U.S. LEXIS 2474 (U.S. 1983).

Where witness and defendant were the only eyewitnesses to murder, and each claimed that the other, acting alone, killed the victim, it would have been very misleading to the jury for the court to have given the jury an instruction to the effect that testimony of an accomplice must be corroborated. State v. Kelley, 450 N.W.2d 729, 1990 N.D. LEXIS 20 (N.D. 1990).

Where there was no direct evidence about when acquaintance learned that defendant’s license was suspended, or that acquaintance knew that defendant’s license was suspended when defendant drove the pickup borrowed from acquaintance, and there was also no direct evidence that acquaintance provided defendant with the keys to the pickup under circumstances indicating a common plan or demonstrating control over defendant, the court could not say, as a matter of law, that acquaintance was an accomplice under N.D.C.C. § 12.1-03-01(1)(b); therefore, acquaintance’s testimony did not have to be corroborated under this section. State v. Deery, 489 N.W.2d 887, 1992 N.D. App. LEXIS 2 (N.D. Ct. App. 1992).

This section applies only in criminal cases, and “accomplice,” when used in a criminal context, is a term of art with a limited, specific meaning, the statutory definition of which is in N.D.C.C. § 12.1-03-01(1), which is used to gauge the need for corroboration of accomplice testimony. This section requires corroboration of testimony only where the witness could be criminally responsible as an accomplice under N.D.C.C. § 12.1-03-01(1). State v. Pacheco, 506 N.W.2d 408, 1993 N.D. LEXIS 179 (N.D. 1993).

Court erred in dismissing conspiracy to take pheasants in excess of legal limit charge against a defendant who led undercover game wardens on a hunt; because the wardens were without criminal intent, and thus were not accomplices, it was not necessary for the state to corroborate the testimony of the wardens. State v. Baumgartner, 2001 ND 202, 637 N.W.2d 14, 2001 N.D. LEXIS 233 (N.D. 2001).

Amount and Type of Corroboration.

The State need not point to a single isolated fact which is sufficient corroboration, as it is the combined and cumulative weight of the evidence other than the testimony of the accomplice witness which satisfies the statute. State v. Haugen, 448 N.W.2d 191, 1989 N.D. LEXIS 215 (N.D. 1989).

Any amount of corroboration is sufficient to give the case to the jury to determine the sufficiency of the corroboration. It is only when there is no corroborating evidence that the Supreme Court may reverse a judgment based upon the verdict of guilty. State v. Haugen, 449 N.W.2d 784, 1989 N.D. LEXIS 253 (N.D. 1989).

The corroboration of an accomplice’s testimony need not directly link the accused to the crime. State v. Burgard, 458 N.W.2d 274, 1990 N.D. LEXIS 131 (N.D. 1990).

The corroboration of accomplice testimony need not establish criminal conduct, but need only corroborate the accomplice as to some material fact and tend to connect the defendant with the crime. Furthermore, the corroborating evidence need not, in isolation, be incriminating, if the combined and cumulative evidence other than the accomplice’s testimony tends to connect the defendant with the commission of the offense. State v. Burgard, 458 N.W.2d 274, 1990 N.D. LEXIS 131 (N.D. 1990).

Connection with Offense.

The testimony of an accomplice does not warrant a conviction unless corroborated by other evidence tending to connect the defendant with the commission of the offense. State v. Todd, 62 N.D. 479, 244 N.W. 25, 1932 N.D. LEXIS 207 (N.D. 1932).

Corroboration of an accomplice’s testimony may be furnished by facts which tend to connect the defendant with the commission of the offense. State v. Foster, 69 N.D. 428, 287 N.W. 517, 1939 N.D. LEXIS 168 (N.D. 1939).

In prosecution for burglary, where the evidence tending to connect defendant with the crime, independent of the testimony of accomplices, consisted of testimony of policeman who knew defendant and testified that he saw a person he thought was defendant at the scene, and testimony of another policeman who apprehended defendant and accomplices near the scene of the crime, there was substantial corroborating evidence sufficient to satisfy the requirements of this section. State v. Anderson, 172 N.W.2d 597, 1969 N.D. LEXIS 67 (N.D. 1969).

Police officer’s testimony that marijuana was found on seat where defendant had been sitting and that defendant had in his possession a pipe and other paraphernalia which had been used in the smoking of marijuana sufficiently corroborated testimony of accomplices connecting defendant with commission of offense of possession of marijuana. State v. Binns, 194 N.W.2d 756, 1972 N.D. LEXIS 117 (N.D. 1972).

All that this section requires is that the evidence, circumstantial or otherwise, corroborate the testimony of an accomplice as to some material fact that tends to connect the defendant with the commission of the crime. Not all elements of the offense need to be corroborated. State v. Neurohr, 376 N.W.2d 805, 1985 N.D. LEXIS 435 (N.D. 1985).

Where roommate’s testimony placed defendant with accomplice in nearby locations shortly before and after burglaries occurred, that testimony was critical because it tended to connect the defendant with the commission of the offense and constituted corroboration of accomplice’s testimony sufficient for submission to the jury. State v. Zimmerman, 524 N.W.2d 111, 1994 N.D. LEXIS 235 (N.D. 1994).

Facts and Circumstances.

The corroboration may be by facts and circumstances as well as by direct evidence. State v. Pusch, 77 N.D. 860, 46 N.W.2d 508, 1950 N.D. LEXIS 173 (N.D. 1950).

Circumstantial as well as direct evidence can be corroborative. State v. Hogie, 454 N.W.2d 501, 1990 N.D. LEXIS 87 (N.D. 1990).

Failure to Instruct.

Failure to instruct jury that a verdict of guilty could not be returned on the uncorroborated evidence of accomplices was not error in the absence of a request to so instruct. State v. Berenson, 65 N.D. 480, 260 N.W. 256, 1935 N.D. LEXIS 134 (N.D. 1935).

Incestuous Intercourse.

A female who participates in incestuous intercourse is an accomplice, and her testimony must be corroborated. State v. Kellar, 8 N.D. 563, 80 N.W. 476, 1899 N.D. LEXIS 47 (N.D. 1899).

Independent Source.

The corroboration of an accomplice must come from a source independent of the accomplice, but the corroborating evidence itself need not be sufficient to support a conviction. State v. Kent, 4 N.D. 577, 62 N.W. 631, 1895 N.D. LEXIS 51 (N.D. 1895); State v. Coudotte, 7 N.D. 109, 72 N.W. 913, 1807 N.D. LEXIS 2, 1897 N.D. LEXIS 67 (N.D. 1897).

The prosecution need not point to a single, isolated item which in itself is corroborative. Rather, the combined and cumulative evidence other than the testimony of an accomplice may tend to connect the defendant to the crime. State v. Hogie, 454 N.W.2d 501, 1990 N.D. LEXIS 87 (N.D. 1990).

Insufficient Corroboration.

Corroboration is not sufficient if it merely shows commission of offense or circumstances thereof; witness who was present when burglary was planned, who agreed to it, who went with others to store to be burglarized, who waited in car but took no part in actual break-in and slept while actual burglary was committed, who then helped concoct story to tell investigating officers in event any of parties should be questioned and who helped divide loot, was accomplice even though he may have had unexpressed objections to burglary; conviction could not stand where only witness for state other than members of party was store owner who could testify only that store had been burglarized and that some merchandise had been taken. State v. Helmenstein, 163 N.W.2d 85, 1968 N.D. LEXIS 96 (N.D. 1968).

Testimony of proprietor of lounge that her business was burglarized and that coins and cigarettes were taken did not constitute corroboration of accomplice testimony since it showed only the commission of the offense and the circumstances thereof but did not connect defendant with the crime. State v. Haugen, 449 N.W.2d 784, 1989 N.D. LEXIS 253 (N.D. 1989).

Speculation as to defendant’s presence from the fact that an unidentified vehicle like the one he was known to drive was sighted in the area was not evidence tending to connect defendant with the commission of the crime for purposes of corroboration. State v. Haugen, 449 N.W.2d 784, 1989 N.D. LEXIS 253 (N.D. 1989).

Insufficient Testimony.

Where trial judge and state’s attorney had grave doubts as to sufficiency of testimony corroborating the testimony of an accomplice, new trial was granted. State v. Fichtner, 58 N.D. 400, 226 N.W. 534, 1929 N.D. LEXIS 224 (N.D. 1929).

Jury Question.

If the accomplice is, by such testimony, corroborated as to some material fact or facts tending to connect the defendant with the commission of the offense, the jury may from that infer that he speaks the truth as to all. State v. Dodson, 23 N.D. 305, 136 N.W. 789, 1912 N.D. LEXIS 95 (N.D. 1912); State v. Smith, 51 N.D. 130, 199 N.W. 187, 1924 N.D. LEXIS 150 (N.D. 1924).

In a prosecution for larceny, the testimony of recent possession of stolen property by the accused and attempting to discourage the arrest of an accomplice, and the assertion to the wife of the accomplice that he has matters fixed up, are sufficient corroboration to require submission of the case to the jury. State v. McCarty, 47 N.D. 523, 182 N.W. 754, 1921 N.D. LEXIS 123 (N.D. 1921).

The weight of the corroborating testimony and the question as to whether or not the testimony of the accomplice is so corroborated as to establish connection of accused with crime charged are jury questions. State v. Pusch, 77 N.D. 860, 46 N.W.2d 508, 1950 N.D. LEXIS 173 (N.D. 1950).

The question whether a child is an accomplice of defendant charged with sodomy, thus requiring corroborative evidence, is a question of fact to be determined by the jury. State v. Powell, 73 N.W.2d 777, 1955 N.D. LEXIS 157 (N.D. 1955).

Whether corroborative evidence exists is a question of law to be decided by the court; after the court has determined that corroborative evidence exists, the sufficiency of such evidence is to be determined by the jury. State v. Thorson, 264 N.W.2d 441, 1978 N.D. LEXIS 238 (N.D. 1978).

The weight of the corroborating evidence is for the jury. It is only when there is no such evidence that a guilty verdict should be reversed. State v. Neurohr, 376 N.W.2d 805, 1985 N.D. LEXIS 435 (N.D. 1985).

In cases involving the use of corroborative evidence, it is incumbent upon the trial court to first determine, as a matter of law, whether or not there is any evidence corroborating the testimony of the accomplice, and only after the court has found such corroborative evidence is it allowed to leave the question of the sufficiency of the corroborative evidence to the jury. State v. Haugen, 448 N.W.2d 191, 1989 N.D. LEXIS 215 (N.D. 1989).

If the facts as to a witness’ culpability are disputed or susceptible of different inferences, then the determination of whether the witness is an accomplice is a question of fact for the jury. If, on the other hand, the facts as to the witness’ culpability are neither disputed nor susceptible of different inferences, then it is a question of law for the court. State v. Kelley, 450 N.W.2d 729, 1990 N.D. LEXIS 20 (N.D. 1990).

When an accomplice testifies, the trial court must first determine, as a matter of law, whether other evidence corroborates that testimony. When the trial court has determined that other evidence corroborates the accomplice’s testimony, the sufficiency of all of the evidence is for the jury to decide. State v. Hogie, 454 N.W.2d 501, 1990 N.D. LEXIS 87 (N.D. 1990).

While the existence of corroborating evidence is for the trial court, the credibility and weight of that evidence is for the jury. State v. Hogie, 454 N.W.2d 501, 1990 N.D. LEXIS 87 (N.D. 1990).

It is for the trial court in the first instance to determine whether there is any corroborative evidence, but the weight to be accorded that evidence is for the jury. State v. Burgard, 458 N.W.2d 274, 1990 N.D. LEXIS 131 (N.D. 1990).

If some evidence tends to connect the defendant to the crime, it is for the jury to weigh that corroborating evidence with the accomplice’s testimony and all other evidence in the case to determine the guilt or innocence of the defendant. State v. Austin, 520 N.W.2d 564, 1994 N.D. LEXIS 188 (N.D. 1994).

Material Facts.

It is not necessary that corroborating testimony should cover every point testified to by the accomplice. State v. Reilly, 22 N.D. 353, 133 N.W. 914, 1911 N.D. LEXIS 52 (N.D. 1911); State v. Marcovitz, 63 N.D. 458, 248 N.W. 481, 1933 N.D. LEXIS 199 (N.D. 1933).

The corroboration required need not extend to every material point, nor be sufficient in itself to support a verdict of guilty. State v. Smith, 51 N.D. 130, 199 N.W. 187, 1924 N.D. LEXIS 150 (N.D. 1924).

Corroborating testimony of an accomplice, to be sufficient as such, need not directly confirm any particular fact testified to by the accomplice. State v. Todd, 62 N.D. 479, 244 N.W. 25, 1932 N.D. LEXIS 207 (N.D. 1932).

Every material fact testified to by accomplice need not be corroborated; corroboration may be furnished by facts which tend to connect defendant with commission of offense. State v. Marmon, 154 N.W.2d 55, 1967 N.D. LEXIS 89 (N.D. 1967).

Under this section it is not necessary to corroborate every fact testified to by an accomplice. All that is required is that the evidence, circumstantial or otherwise, corroborate the testimony of an accomplice as to some material fact or facts and tends to connect the defendant with the commission of the crime. State v. Haugen, 448 N.W.2d 191, 1989 N.D. LEXIS 215 (N.D. 1989).

It is not necessary that corroborating evidence be sufficient, in itself, to warrant a conviction or establish a prima facie case. State v. Haugen, 448 N.W.2d 191, 1989 N.D. LEXIS 215 (N.D. 1989).

All that is required is that the evidence, circumstantial or otherwise, corroborate the testimony of the accomplice as to some material fact or facts, and tend to connect the defendant with the commission of the crime. It is not necessary that the corroborating evidence be sufficient, in itself, to warrant a conviction or establish a prima facie case. State v. Haugen, 449 N.W.2d 784, 1989 N.D. LEXIS 253 (N.D. 1989).

Every fact given by an accomplice need not be corroborated. All that is needed is other evidence corroborating one or more material details or facts which tend to connect the defendant with the crime. State v. Hogie, 454 N.W.2d 501, 1990 N.D. LEXIS 87 (N.D. 1990).

To be submitted to the jury, the corroborating evidence standing alone does not need to prove guilt. State v. Hogie, 454 N.W.2d 501, 1990 N.D. LEXIS 87 (N.D. 1990).

Presence at Scene of Crime.

While evidence of presence alone may not always be enough to convict, presence at or near the scene of a crime, together with other circumstances, is sufficient to corroborate an accomplice’s testimony and to convict. State v. Esparza, 1998 ND 13, 575 N.W.2d 203, 1998 N.D. LEXIS 2 (N.D. 1998).

There was corroborating evidence to support the testimony of an accomplice in a drug case where police found clothes apparently belonging to defendant at a residence where an alleged assault occurred and drugs; moreover, the damage to the residence and the blood evidence found further supported the victim’s story that a violent incident involving defendant had occurred. The evidence placing defendant at the scene was sufficient to connect him with the drugs found under the doctrine of constructive possession; therefore, he was properly convicted of possession of methamphetamine with intent to manufacture, possession of drug paraphernalia for use with methamphetamine, and possession of methamphetamine. State v. Falconer, 2007 ND 89, 732 N.W.2d 703, 2007 N.D. LEXIS 84 (N.D. 2007).

Purpose of Corroboration.

The purpose of corroborative evidence is to demonstrate that an accomplice is a reliable witness and worthy of credit. State v. Hogie, 454 N.W.2d 501, 1990 N.D. LEXIS 87 (N.D. 1990).

The purpose of corroborating evidence is to show that accomplices are reliable witnesses and worthy of credit, however, under this section it is not necessary to corroborate every fact testified to by an accomplice; all that is required is that the evidence, circumstantial or otherwise, corroborate the testimony of an accomplice as to some material fact or facts, and tends to connect the defendant with the commission of the crime; and, it is not necessary that the corroborating evidence be sufficient, in itself, to warrant a conviction or establish a prima facie case. Furthermore, the state need not point to a single isolated fact which is sufficient corroboration, as it is the combined and cumulative weight of the evidence other than the testimony of the accomplice witness which satisfies the statute. State v. Burgard, 458 N.W.2d 274, 1990 N.D. LEXIS 131 (N.D. 1990).

Sufficient Corroboration.

Defendant’s possession of stolen vehicle in Kansas with plates stolen in South Dakota tended to connect him to its recent theft in North Dakota, and thus sufficiently corroborated testimony of two accomplices for theft conviction. State v. Hogie, 454 N.W.2d 501, 1990 N.D. LEXIS 87 (N.D. 1990).

Corroboration of accomplice testimony was sufficient where officer’s testimony established that accomplice’s vehicle traveled to defendant’s mobile home and then returned to accomplice’s business, where the accomplice delivered marijuana to the undercover officer. State v. Burgard, 458 N.W.2d 274, 1990 N.D. LEXIS 131 (N.D. 1990).

When viewed cumulatively, the evidence strongly corroborated witnesses’ testimony about defendant’s involvement in the murders of an elderly couple; there was sufficient corroborating evidence for witnesses’ testimony. State v. Austin, 520 N.W.2d 564, 1994 N.D. LEXIS 188 (N.D. 1994).

There was more than mere presence or an isolated circumstance where the act of the accomplice’s attempted phone call to defendant’s residence added corroboration in prosecution for delivery of marijuana; the aggregation of circumstances, reinforced with testimony by the narcotics officers, clearly corroborated accomplice’s testimony and linked defendant to the drug delivery. State v. Torres, 529 N.W.2d 853, 1995 N.D. LEXIS 49 (N.D. 1995).

Evidence was sufficient to corroborate accomplice’s testimony where police officer testified he saw defendant sitting in a parked car at the restaurant the accomplice burglarized, police officers testified that they found pry bars in defendant’s car and paint on one pry bar matched the broken window on the restaurant, and the owner of the restaurant testified that a money clip found in defendant’s car was identical to a clip he kept in the cash register. State v. Marshall, 531 N.W.2d 284, 1995 N.D. LEXIS 81 (N.D. 1995).

Accomplice’s testimony that defendant was responsible for murder was corroborated by descriptions of defendant given by other witnesses, atomic absorption test results indicating defendant had handled a recently discharged firearm, shoeprints found at crime scene, and defendant’s attempted flight from police and possession of shotgun shell. State v. Garcia, 1997 ND 60, 561 N.W.2d 599, 1997 N.D. LEXIS 45 (N.D.), cert. denied, 522 U.S. 874, 118 S. Ct. 193, 139 L. Ed. 2d 131, 1997 U.S. LEXIS 5532 (U.S. 1997).

There was sufficient evidence corroborating the testimony of accomplices to link both defendants to a burglary where defendant A was caught fleeing a car just blocks from the crime scene and the car contained items stolen from that scene; and there was evidence that defendant B was with accomplices until shortly before the burglary occurred and afterwards, he was identified by an accomplice as he passed by in a car close to the crime scene and then fled that car when pursued by police, and the car from which he fled contained stolen items from the crime scene. State v. Fraser, 2000 ND 53, 608 N.W.2d 244, 2000 N.D. LEXIS 51 (N.D. 2000).

Sufficient evidence supported defendant’s murder conviction because, although there was no independent and direct evidence about the actual trigger person for the victim’s death, the combined and cumulative effect of the other independent evidence tended to connect defendant to the murder and corroborated the testimony of defendant’s wife. State v. Gaede, 2007 ND 125, 736 N.W.2d 418, 2007 N.D. LEXIS 124 (N.D. 2007).

Because appellant and another juvenile were accomplices, the juvenile court’s finding that appellant committed a theft had to be based upon more than the other juvenile’s testimony; however, the record was replete with evidence corroborating the other juvenile’s testimony and connecting appellant to the commission of the theft. Molbert v. J.K. (In the Interest of J.K.), 2009 ND 46, 763 N.W.2d 507, 2009 N.D. LEXIS 52 (N.D. 2009).

Evidence was sufficient to sustain defendant's conviction of conspiracy to deliver a controlled substance where even if the trial court erred by not giving a corroboration jury instruction, evidence from the accomplices' cell phones corroborated their testimony that defendant was the person who sold them the marijuana on the day of the transaction, and thus, any error was harmless. State v. Reddig, 2016 ND 39, 876 N.W.2d 34, 2016 N.D. LEXIS 28 (N.D. 2016).

“Tends” or “Tending.”

The corroboration of an accomplice’s testimony need not directly link the accused to the crime. Rather, corroboration merely requires that there be evidence tending to connect the defendant with the offense committed. State v. Haugen, 448 N.W.2d 191, 1989 N.D. LEXIS 215 (N.D. 1989).

As used in the statute requiring corroboration, “tends” indicates tendency, not certainty. State v. Hogie, 454 N.W.2d 501, 1990 N.D. LEXIS 87 (N.D. 1990).

Collateral References.

Necessity for instructions to jury on question as to who are accomplices, within rule requiring corroboration of their testimony, 19 A.L.R.2d 1352.

Thief as accomplice of one charged with receiving stolen property, or vice versa, 53 A.L.R.2d 817.

Woman upon whom abortion is committed or attempted as an accomplice, 34 A.L.R.3d 858.

Adverse presumption or inference based on failure to produce or examine codefendant or accomplice who is not on trial — modern criminal cases, 76 A.L.R.4th 812.

Discretion of Court.

The decision of whether or not to grant or deny a request for a jury view rests in the sound discretion of the trial judge. State v. Schlickenmayer, 334 N.W.2d 196, 1983 N.D. LEXIS 295 (N.D. 1983).

During defendant’s trial for murder, the court did not abuse its discretion in denying his motion to allow the jury to view the crime scene outside his house; the court admitted exhibits into evidence, including photographs of the area, photographs taken at the crime scene by the police, and photographs of his house. State v. Romero, 2013 ND 77, 830 N.W.2d 586, 2013 N.D. LEXIS 78 (N.D. 2013).

Presence of Trial Judge at Viewing.

By the clear language of this section, it is the mandatory duty of the trial judge to attend a viewing by the jury, and his absence at such viewing was prejudicial and constituted reversible error. State v. Rohrich, 135 N.W.2d 175, 1965 N.D. LEXIS 150 (N.D. 1965).

Collateral References.

Unauthorized view of premises by juror or jury in criminal case as ground for reversal, new trial, or mistrial, 50 A.L.R.4th 995.

Competency of Officers.

A sheriff and his deputy are not incompetent to act as bailiffs in charge of the jury because they testify against the defendant on trial. State v. Rosencrans, 9 N.D. 163, 82 N.W. 422, 1900 N.D. LEXIS 206 (N.D. 1900).

Discretion of Court.

It is within the discretion of the trial court to determine whether the jurors may separate while the cause is being tried. State v. Glass, 29 N.D. 620, 151 N.W. 229, 1915 N.D. LEXIS 39 (N.D. 1915).

Juror Misconduct.

Defendant’s right to a fair and impartial jury under the Sixth Amendment and N.D. Const. art. I, § 13 was not violated by a juror’s use of a cell phone where there was no evidence that the other jurors heard any information outside of that presented in the courtroom. The trial court had informed the jury not to communicate among themselves or others on the subject of the trial, pursuant to N.D.C.C. §§ 29-21-27, 29-21-28. State v. Newman, 2007 ND 148, 738 N.W.2d 887, 2007 N.D. LEXIS 150 (N.D. 2007).

No Prejudice Shown.

Fact that member of jury was allowed to go to post office to get his mail did not entitle defendant to new trial where it was not shown that prejudice resulted thereby. State v. Zimmerman, 60 N.D. 256, 233 N.W. 845, 1930 N.D. LEXIS 231 (N.D. 1930).

Presumption of Prejudice.

Where jurors separate without consent of the court and under circumstances which would permit improper influences upon them, prejudice to the defendant will be presumed. State v. Pancoast, 5 N.D. 516, 67 N.W. 1052 (N.D. 1896).

Separation After Submission.

It is error to permit the jury to separate after the case has been submitted to them and they have been deliberating for some time. State v. Lamoreaux, 62 N.D. 55, 241 N.W. 595, 1932 N.D. LEXIS 152 (N.D. 1932).

Collateral References.

Separation of jurors permitted to attend theater or the like during course of criminal trial as ground for mistrial, new trial, or reversal, 33 A.L.R.2d 847.

Separation of jury in criminal case after submission of cause—modern cases, 72 A.L.R.3d 248.

Postretirement out-of-court communications between jurors and trial judge as grounds for new trial or reversal in criminal case, 43 A.L.R.4th 410.

Unauthorized view of premises by juror or jury in criminal case as ground for new trial, State v. Grant, 361 N.W.2d 243, 1985 N.D. LEXIS 245 (N.D. 1985).

Prejudicial Effect of Juror Misconduct Arising from Internet Usage. 48 A.L.R.6th 135.

Sufficiency of Admonition.

Because defendant failed to object to the short form admonishment, the district court’s error of failing to properly admonish the jury was not prejudicial and did not affect a substantial right; while the district court did not properly admonish the jury during breaks and adjournment, it did inform the jury of the substance of the statute when it read the preliminary jury instructions to the jury. State v. Pemberton, 2019 ND 157, 930 N.W.2d 125, 2019 N.D. LEXIS 165 (N.D. 2019).

“Adjournment” Defined.

The temporary cessation of proceedings before a jury for the purpose of hearing a motion is not an “adjournment” within the law requiring admonition. State v. West, 57 N.D. 652, 223 N.W. 705, 1929 N.D. LEXIS 312 (N.D. 1929).

Harmless Error.

District court’s failure to admonish the jury under N.D.C.C. § 29-21-28 prior to a 10 minute break was harmless error because defendant did not object, and he did not claim or demonstrate any prejudice. State v. Myers, 2006 ND 242, 724 N.W.2d 168, 2006 N.D. LEXIS 248 (N.D. 2006).

Although a trial court erred by failing to admonish the jury not to talk about the case or form opinions thereon before hearing all of the evidence prior to a lunch break, as it should have pursuant to N.D.C.C. § 29-21-28 and N.D.R.Ct. 6.11(b), defendant neither claimed nor demonstrated that he was prejudiced by such error. The trial court’s presumed error did not affect defendant’s substantial rights and thus, under N.D.R.Crim.P. 52(a), the error was harmless. State v. Ripley, 2009 ND 105, 766 N.W.2d 465, 2009 N.D. LEXIS 110 (N.D. 2009).

Sufficiency of Admonition.

Where trial judge admonished entire jury panel at beginning of term not to discuss the case with each other or others prior to its submission to them, and followed that full admonition at appropriate times during trial with a statement to the jurors, “members of the jury, bear in mind the court’s usual admonition”, no prejudice resulted to defendant by trial court judge’s use of a short form of admonition. State v. Julson, 202 N.W.2d 145, 1972 N.D. LEXIS 99 (N.D. 1972).

Admonition to the jury just after it was sworn, before the court held a discussion with the attorneys in chambers, that it hear nothing about the case, that the facts of the case would be presented in the courtroom, and it should not and could not form or express an opinion on the case until it was finally submitted at the conclusion of all the testimony, was not reversible error. State v. His Chase, 531 N.W.2d 271, 1995 N.D. LEXIS 84 (N.D. 1995).

Warning Given.

Defendant’s right to a fair and impartial jury under the Sixth Amendment and N.D. Const. art. I, § 13 was not violated by a juror’s use of a cell phone where there was no evidence that the other jurors heard any information outside of that presented in the courtroom. The trial court had informed the jury not to communicate among themselves or others on the subject of the trial, pursuant to N.D.C.C. §§ 29-21-27, 29-21-28. State v. Newman, 2007 ND 148, 738 N.W.2d 887, 2007 N.D. LEXIS 150 (N.D. 2007).

Collateral References.

Propriety and effect of jury in civil case taking depositions to jury room during deliberations, 57 A.L.R.2d 1011.

Effect of evidence as to juror’s statements, during deliberation in criminal case as to facts not introduced in evidence, 58 A.L.R.2d 556.

Compromise Verdict.

Testimony of jurors cannot be used to show deliberations of jury unless to show that a compromise verdict was reached. James Turner & Sons v. Great N. Ry., 67 N.D. 347, 272 N.W. 489, 1937 N.D. LEXIS 89 (N.D. 1937).

Impermissible Communications.

A telephone call received by a juror during deliberations was an impermissible communication under this section, but it did not rise to the level of a denial of a fair trial, and defendant had not shown prejudice or demonstrated he suffered a serious injustice when the juror took the call to discuss a family emergency. State v. Weisz, 2002 ND 207, 654 N.W.2d 416, 2002 N.D. LEXIS 269 (N.D. 2002).

Separation of Jurors.

Where jury separated after case was finally submitted, but had no communications with one another or anyone else concerning the case, verdict would not be set aside. Territory v. King, 50 N.W. 623, 6 Dakota 131, 1889 Dakota LEXIS 48 (Dakota 1889).

It was not reversible error to allow one of jurors to visit post office to get his mail where no prejudice resulted to the defendant thereby. State v. Zimmerman, 60 N.D. 256, 233 N.W. 845, 1930 N.D. LEXIS 231 (N.D. 1930).

Where jurors went to a restaurant for lunch in three cars with both a bailiff and deputy sheriff present in two cars and only a deputy sheriff present in the third, and it appeared that no improper influences were used or attempted, no prejudice resulted from the mode in which the jurors were taken to lunch and returned to the courthouse and such separation furnished no ground for a new trial. State v. Julson, 202 N.W.2d 145, 1972 N.D. LEXIS 99 (N.D. 1972).

Trial court’s denial of defendant’s motion to sequester the jury during deliberations and the court’s permitting the jurors to go home at nights and return during the days to resume deliberations did not constitute reversible error where the court admonished the jurors to avoid publicity and not to discuss the case and the defendant failed to show any actual prejudice resulting from the court’s actions. State v. Bergeron, 340 N.W.2d 51, 1983 N.D. LEXIS 409 (N.D. 1983).

Collateral References.

Separation of jurors permitted to attend theater or the like during course of criminal trial as ground for mistrial, new trial, or reversal, 33 A.L.R.2d 847.

Propriety and prejudicial effect, in criminal case, of placing jury in charge of officer who is a witness in the case, 38 A.L.R.3d 1012.

Communication between court officials or attendants and jurors in criminal trial as ground for mistrial or reversal—post-Parker cases, 35 A.L.R.4th 890.

Post-retirement out-of-court communications between jurors and trial judge as grounds for new trial or reversal in criminal case, 43 A.L.R.4th 410.

Completed Transcript.

This section prohibits the use of a completed transcript by the jurors. State v. McLain, 301 N.W.2d 616, 1981 N.D. LEXIS 227 (N.D. 1981).

Perjury Prosecution.

In a prosecution for perjury it was error for court to permit jury to take with them a transcript of committing magistrate’s docket showing proceedings on the examination and his finding that sufficient evidence of defendant’s guilt existed. Territory v. Jones, 50 N.W. 528, 6 Dakota 85, 1888 Dakota LEXIS 66 (Dakota 1888).

Videotapes and Equipment.

The district court’s exclusion of videotape viewing equipment from jury room in case where videotape was received into evidence was not an abuse of discretion. State v. Boehler, 542 N.W.2d 745, 1996 N.D. LEXIS 27 (N.D. 1996).

Collateral References.

Propriety of permitting jury to take X-ray picture introduced in evidence with them into jury room, 10 A.L.R.2d 918.

Right to have reporter’s notes read to jury, 50 A.L.R.2d 176.

Taking of notes by jury, 36 A.L.R.5th 255.

Construction.

Although the statute specifically refers only to jury questions on a “point of law” and jury requests to have testimony read, the statute is construed to require that all communications with the jurors, after a case has been submitted to them, must be made in open court and in the presence of the defendant. State v. Kruckenberg, 2008 ND 212, 758 N.W.2d 427, 2008 N.D. LEXIS 228 (N.D. 2008).

Court’s Comments.

Where, after the jury retired for deliberation, trial judge entered jury room at request of jurors, in absence of defendant and his attorney, and had some conversation with the jury in reference to the case, such action required the granting of a new trial, without consideration of the question whether or not the conversation was prejudicial. State v. Murphy, 17 N.D. 48, 115 N.W. 84, 1908 N.D. LEXIS 17 (N.D. 1908).

Harmless Error.

While it was error for trial court to communicate with the jury outside the presence of defendant and his attorney after the jury had retired for deliberations, such error was harmless error where it could be determined beyond a reasonable doubt that such communication did not affect the substantial rights of the defendant. State v. Hatch, 346 N.W.2d 268, 1984 N.D. LEXIS 260 (N.D. 1984).

Where the trial court responded to a written question from the jury concerning the testimony about an exhibit with a written response telling the jurors to rely on their own recollections, it would be unreasonable to conclude that defendant’s presence or absence would have had any effect on the result; there was no possibility of prejudice and the trial court’s error was harmless beyond a reasonable doubt. State v. Zimmerman, 524 N.W.2d 111, 1994 N.D. LEXIS 235 (N.D. 1994).

The trial court’s error in communicating with the jury in the absence of the defendant was harmless beyond a reasonable doubt where, considering the jury’s requests, defense counsel’s repeated waiver, and the trial court’s responses, it would have been unreasonable to conclude that defendant’s presence or absence would have had any effect on the result. State v. Ash, 526 N.W.2d 473, 1995 N.D. LEXIS 5 (N.D. 1995).

In an assault of a police officer case, defendant was not denied a fair trial when the district court answered requests from the jury while defendant was hospitalized as the procedure for answering such requests under N.D.C.C. § 29-22-05 was followed, and every effort to protect defendant’s rights and to avoid any possibility of prejudice to defendant was made. The discussion about the two jury requests while defendant was hospitalized was harmless beyond a reasonable doubt. State v. Curtis, 2009 ND 34, 763 N.W.2d 443, 2009 N.D. LEXIS 62 (N.D. 2009).

Open Court.

Whatever takes place upon return of jury for further instructions must take place in open court with counsel for state and defendant and his attorney present. State v. Murphy, 17 N.D. 48, 115 N.W. 84, 1908 N.D. LEXIS 17 (N.D. 1908).

Trial court’s communication with jury outside presence of counsel and defendant, occurring when court had bailiff inform jury that court could not comply with request to answer question concerning meaning of an expression used by a witness, was error, but error was not prejudicial to substantial rights of defendant and did not entitle defendant to new trial. State v. Klein, 200 N.W.2d 288, 1972 N.D. LEXIS 133 (N.D. 1972).

The jury’s question about a defense incorporating profound psychosis and alcohol withdrawal was not improper communication with the court, even though the defendant was not present. State v. Klose, 2003 ND 39, 657 N.W.2d 276, 2003 N.D. LEXIS 31 (N.D. 2003).

Petitioner’s trial counsel was not ineffective when he failed to claim error for the trial court’s procedure in responding to two specific questions and/or failed to exercise petitioner’s statutory right to have the jury brought into the courtroom and have the information requested by the jury given to it because the jury did not request testimony or to be brought into court, the trial court’s communication with the jury was made in open court in the presence of petitioner and his counsel, and counsel testified that he found the trial court’s response acceptable to the defense. Kinsella v. State, 2013 ND 238, 840 N.W.2d 625, 2013 N.D. LEXIS 249 (N.D. 2013).

Reading of Instructions.

Rule 30, N.D.R.Crim.P. requires that, except when the parties agree to oral instructions by the court, final jury instructions must be in written form and must be read by the court to the jury; the general term “instruct” does not allow a court to submit written instructions to a jury without the court reading those instructions to the jury. State v. Lamb, 541 N.W.2d 457, 1996 N.D. LEXIS 10 (N.D. 1996).

Reading Testimony to Jury.

Where a juror requested to have read to her the testimony of a particular witness, and the court reporter read to her the testimony requested and testimony of another witness which the juror did not specifically request, if any error was committed in permitting the reading of the unrequested testimony it was harmless where the portion of the unrequested testimony was less than one page and substantially consistent with the requested testimony, there was no indication that the court reporter prefaced the reading of the unrequested testimony with a statement to the effect that it was the testimony of a different witness than the one requested, and there was no specific objection to the reading of the unrequested testimony. State v. Hartsoch, 329 N.W.2d 367, 1983 N.D. LEXIS 225 (N.D. 1983).

Where a juror requested to have read to her the testimony of a particular witness, this section required the testimony to be read to the jury, and whether or not the testimony was emphasized by being read to the jury was an inescapable consequence of this section and was not reversible error. State v. Hartsoch, 329 N.W.2d 367, 1983 N.D. LEXIS 225 (N.D. 1983).

Where jury requests witness’s testimony be read, the court may request the jury to specify the testimony it desires to rehear to save time and avoid confusion; party objecting to limits on testimony read must request that court have additional testimony of the witness read. State v. Christensen, 1997 ND 57, 561 N.W.2d 631, 1997 N.D. LEXIS 53 (N.D. 1997).

Reduction to Writing.

The statute requiring all instructions in a criminal case to be reduced to writing does not apply to instructions given in response to requests made and questions propounded by the jury after submission of the cause and retirement of the jury. State v. Schell, 65 N.D. 126, 256 N.W. 416, 1934 N.D. LEXIS 179 (N.D. 1934).

Request of Jury in Open Court.

The trial court erred by responding to the jurors’ request for a legal definition in the defendant’s absence and by not calling the jury into open court. State v. Smuda, 419 N.W.2d 166, 1988 N.D. LEXIS 33 (N.D. 1988).

District court’s failure to call the jury into open court to observe the effect of the prolonged late-night deliberations was not reversible error under N.D.C.C. § 29-22-05 where the jury was informed that it would be given a break at 6 p.m., it had returned a verdict at 7:35 p.m., and as a result, the jury was not exposed to prolonged late-night deliberations. Furthermore, where the jury submitted written questions, the defendant was present when the court considered how to respond to the jury’s questions; defendant failed to object to the court’s procedure to address the jury questions and failed to show how the court’s procedure constituted plain error affecting his substantial rights. State v. Fehl-Haber, 2007 ND 99, 734 N.W.2d 770, 2007 N.D. LEXIS 100 (N.D. 2007).

Right to Be Present Violated.

Given the jury’s 17-hour workday, the lateness of the hour, the district court’s knowledge of the deadlocked jury’s numerical division, the two responses to the jurors encouraging them to continue to try to reach a verdict, the failure of the court to follow the proper procedure in addressing the jury’s questions, and the lack of a record of the in-chamber conferences, defendant’s right to be present was violated and the verdicts were improperly coerced in violation of defendant’s due process right to a fair trial. While each of the errors in defendant’s case, standing alone, arguably might have been harmless, the errors were so intertwined and interrelated that the cumulative effect of the errors required reversal of all three criminal judgments, and a remand for a new trial. State v. Parisien, 2005 ND 152, 703 N.W.2d 306, 2005 N.D. LEXIS 185 (N.D. 2005).

While a trial court committed plain error in responding to a jury’s request for a transcript of a witness’s testimony without calling the jury into open court, the error did not affect defendant’s substantial rights because defendant was not prejudiced by the error; the overwhelming evidence, including the audio recording of the controlled methamphetamine buy, the testimony of a confidential informant, and the testimony of the investigating officer, supported defendant’s conviction for delivery of methamphetamine. State v. Kruckenberg, 2008 ND 212, 758 N.W.2d 427, 2008 N.D. LEXIS 228 (N.D. 2008).

Trial Court’s Comments.

It was not reversible error for judge, after twenty-eight hours of deliberation, to tell jury they ought to be able to reach a verdict since case had twice been tried at great deal of expense to county. Territory v. King, 50 N.W. 623, 6 Dakota 131, 1889 Dakota LEXIS 48 (Dakota 1889).

Trial court made no error where, in response to jury foreman’s request for another explanation of the offense of aggravated assault, he read the criminal information against the defendant and the jury instructions which set forth various definitions and an analytical simplification of the statute defining the offense of aggravated assault, and after the reading he asked the jury foreman if he understood the court’s answer. State v. Hartsoch, 329 N.W.2d 367, 1983 N.D. LEXIS 225 (N.D. 1983).

Trial court’s incorrect statement to the jury that the jury “would not normally receive the testimony of defendant and a police officer but, by virtue of the nature of the instant case, the court granted that latitude and that’s all the transcripts and all the reading you’ll receive” did not constitute obvious error because it was not clear that the jury was denied access to reexamine any evidence or testimony and defendant had not demonstrated that he suffered a serious injustice or prejudice. State v. Austin, 2007 ND 30, 727 N.W.2d 790, 2007 N.D. LEXIS 30 (N.D. 2007).

Because the specific crime intended to be committed in the premises was not an element of burglary under N.D.C.C. § 12.1-22-02(1), the jury instruction stating the State was required to prove defendant “then and there intended to commit a crime in the premises” correctly informed the jury of the applicable law, and, under N.D.C.C. § 29-22-05, the district court did not err by referring the jury to the jury instructions in its response to a jury question. State v. Mertz, 2012 ND 145, 818 N.W.2d 782, 2012 N.D. LEXIS 129 (N.D. 2012).

Waiver.

The defense attorney’s failure to object to the trial court’s handling of a jury request to hear the defendant’s testimony again constituted waiver of the issue on appeal. State v. Jahner, 2003 ND 36, 657 N.W.2d 266, 2003 N.D. LEXIS 32 (N.D. 2003).

Collateral References.

Propriety and prejudicial effect in criminal case of placing jury in charge of officer who is a witness in the case, 38 A.L.R.3d 1012.

Separation of jury in criminal case during trial—modern cases, 72 A.L.R.3d 131.

Separation of jury in criminal case after submission of cause — modern cases, 72 A.L.R.3d 240, 247.

Communications between court officials or attendants and jurors in criminal trial as ground for mistrial or reversal — post-Parker cases, 35 A.L.R.4th 890.

Law Reviews.

Summary of North Dakota Supreme Court Decisions on Criminal Law — Murder, 71 N.D. L. Rev. 867 (1995).

Exceptions.

Exceptions mentioned in this statute apply only to legal and valid verdicts. State v. Barry, 14 N.D. 316, 103 N.W. 637, 1905 N.D. LEXIS 37 (N.D. 1905).

Mandatory Statute.

Provisions of this statute requiring highest or lowest punishment are mandatory. State v. Barry, 14 N.D. 316, 103 N.W. 637, 1905 N.D. LEXIS 37 (N.D. 1905).

Questioning of Jury Unnecessary.

Trial court did not err in refusing to question jurors about the verdict; a trial court satisfies its obligation by comparing the verdict with the law of the case, and the trial court is not required to question individual jurors about how the verdict was reached. State v. McClary, 2004 ND 98, 679 N.W.2d 455, 2004 N.D. LEXIS 194 (N.D. 2004).

Collateral References.

Propriety and effect of court’s indication to jury that court would suspend sentence, 8 A.L.R.2d 1001.

Validity and efficacy of accused’s waiver of unanimous verdict, 97 A.L.R.3d 1253.

Quotient verdicts, 8 A.L.R.3d 335.

Consistency of verdict in criminal case, necessity of, 22 A.L.R.3d 717.

Positive Plea.

A plea of guilty must be positive and definite as to the degree and must not merely refer to the information. State v. Noah, 20 N.D. 281, 124 N.W. 1121, 1910 N.D. LEXIS 55 (N.D. 1910).

Trial Court’s Discretion.

Except where a plea of guilty is received and there is doubt of degree of offense, it is entirely discretionary with trial court whether evidence shall be received in aggravation or mitigation of the punishment. State v. Gammons, 64 N.D. 702, 256 N.W. 163, 1934 N.D. LEXIS 255 (N.D. 1934).

Collateral References.

Duty of court, upon plea of guilty or nolo contendere to offense involving several degrees, to hear evidence to determine degree, 34 A.L.R.2d 919.

Mistaken belief in existence, validity, or effect of divorce or separation as mitigating punishment for bigamy or allied offense, 56 A.L.R.2d 915.

Other offenses committed by defendant, right of court in imposing sentence to consider, in absence of statute in that regard, 96 A.L.R.2d 768.

Trial Court’s Discretion.

Except where plea of guilty is received it is entirely discretionary whether evidence shall be received in aggravation or mitigation of punishment. State v. Gammons, 64 N.D. 702, 256 N.W. 163, 1934 N.D. LEXIS 255 (N.D. 1934).

Waiver of Objections.

Failure of defendant to object to exhibits presented to trial court just before sentencing was a waiver of such objections in the future. State v. Hefta, 88 N.W.2d 626, 1958 N.D. LEXIS 68 (N.D. 1958).

Collateral References.

Cruel and unusual punishment, under constitution, with respect to length of sentence, 33 A.L.R.3d 335.

Downward departure under state sentencing guidelines permitting downward departure for defendants with significantly reduced mental capacity, including alcohol or drug dependency, Sentencing — Downward Departure. 113 A.L.R.5th 597.

Confession as Evidence.

It was not error for trial court to receive exhibits concerning defendant’s confession although no foundation was laid by testimony, where defendant failed to object to such evidence. State v. Hefta, 88 N.W.2d 626, 1958 N.D. LEXIS 68 (N.D. 1958).

Criminal Record.

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. State v. Willms, 117 N.W.2d 84, 1962 N.D. LEXIS 89 (N.D. 1962).

Failure to Object.

In prosecution for rape, where defendant was informed during trial that certain exhibits could not be received in evidence over his objection, and he did not object thereto, admission of such evidence did not violate this section. In re Stone, 171 N.W.2d 119, 1969 N.D. LEXIS 88 (N.D. 1969), cert. denied, 397 U.S. 912, 90 S. Ct. 912, 25 L. Ed. 2d 93, 1970 U.S. LEXIS 3002 (U.S. 1970).

Where court considered evidence from a newspaper article at the sentencing hearing, use of this evidence could not be reviewed on appeal because defendant did not object to the court’s consideration of the newspaper article during sentencing. State v. Wishnatsky, 491 N.W.2d 733, 1992 N.D. LEXIS 213 (N.D. 1992).

Parole or Probation Report.

Neither the Sixth Amendment nor this section requires that a defendant be permitted to cross-examine the person who prepares a parole or probation report. State v. Moran, 474 N.W.2d 77, 1991 N.D. LEXIS 153 (N.D. 1991).

Testimony of Witnesses.

Where defendant stands convicted by his own plea of guilty, the court has the right, in determining the extent of the punishment to be imposed, to hear evidence of circumstances in aggravation or mitigation of punishment. Under this section, such evidence should be presented in the form of testimony of witnesses examined in open court in the presence of the defendant. State v. Willms, 117 N.W.2d 84, 1962 N.D. LEXIS 89 (N.D. 1962).

Constitutionality.

This statute does not violate either the state or federal constitutions. State v. Kilmer, 31 N.D. 442, 153 N.W. 1089, 1915 N.D. LEXIS 193 (N.D. 1915).

Additional Imprisonment.

A judgment that a prisoner be imprisoned and fined a certain sum, and that there be additional imprisonment in default of the payment of the fine, is valid. State v. Merry, 20 N.D. 337, 127 N.W. 83, 1910 N.D. LEXIS 85 (N.D. 1910).

Assault and Battery.

Person convicted of assault and battery, who fails to pay the fine and costs, may be imprisoned for nonpayment of costs as well as the fine. State v. Fleming, 20 N.D. 105, 126 N.W. 565, 1910 N.D. LEXIS 68 (N.D. 1910).

Building Ordinances.

A person convicted of violating an ordinance regulating the construction of wooden buildings could be imprisoned if the fine was not paid. City of Mayville v. Rosing, 19 N.D. 98, 123 N.W. 393, 1909 N.D. LEXIS 91 (N.D. 1909).

Charge on Estate.

Judgments imposed as punishment for the violation of a criminal law do not survive the death of the party against whom they are entered, so as to be a charge upon his estate. United States v. Jacob Schmidt Brewing Co., 254 F. 714, 1918 U.S. Dist. LEXIS 779 (D.N.D. 1918).

Court Costs.

An assessment of court costs is not a “fine” within the meaning of this section, and failure to pay such costs cannot result in imprisonment under its authority. State v. Allred, 254 N.W.2d 701, 1977 N.D. LEXIS 275 (N.D. 1977).

Interest.

Judgments in criminal cases do not bear interest. United States v. Jacob Schmidt Brewing Co., 254 F. 714, 1918 U.S. Dist. LEXIS 779 (D.N.D. 1918).

Justice Courts.

Justice of the peace cannot imprison defendant for failure to pay the fine. Ex parte Salhus, 63 N.D. 238, 247 N.W. 401, 1933 N.D. LEXIS 177 (N.D. 1933).

Unauthorized Insurance Agent.

Insurance agent who acted without a certificate of authority was guilty of a misdemeanor and subject to imprisonment for failure to pay his fine. In re Hogan, 8 N.D. 301, 78 N.W. 1051, 1899 N.D. LEXIS 7 (N.D. 1899).

Burden of Proof.

On appeal, the defendant has the burden of showing whether the costs as taxed were excessive. State v. McCauley, 68 N.D. 198, 277 N.W. 605, 1938 N.D. LEXIS 97 (N.D. 1938).

Amount of costs taxed will not be disturbed unless it affirmatively appears that amount fixed by trial court exceeded costs of prosecution. State v. Simpson, 78 N.D. 571, 50 N.W.2d 661, 1951 N.D. LEXIS 112 (N.D. 1951).

Costs As in Civil Case.

The costs upon conviction in a criminal action should be taxed by the clerk as is done in a civil case. State v. Kruse, 19 N.D. 203, 124 N.W. 385, 1909 N.D. LEXIS 106 (N.D. 1909).

Lien.

A judgment for maintaining a liquor nuisance presumptively is a lien upon the property occupied by the judgment debtor. State v. Ildvedson, 20 N.D. 62, 126 N.W. 489, 1910 N.D. LEXIS 63 (N.D. 1910).

Collateral References.

Parties liable for storage or similar caretaking charges as taxable costs in proceeding to forfeit personal property, 60 A.L.R.2d 813.

Extent of defendant’s liability for costs of prosecution, 65 A.L.R.2d 854.

No Property Interest Created.

This section created no “claim of entitlement” in defendants to a compromise of their costs and fees. The statute merely authorizes the board to compromise and settle judgments for such costs and fees, accords the board broad, unfettered discretion in exercising its authority, and the statute provides no objective criteria or standards, nor any significant limitation upon the board’s discretion. At best, the statute creates “an abstract need or desire,” or a “mere unilateral expectation,” of potential benefits; therefore, the statute does not create a constitutionally protected property interest that would give rise to due process rights. Ennis v. Williams County Bd. of Comm'rs, 493 N.W.2d 675, 1992 N.D. LEXIS 244 (N.D. 1992).

Proof of Inability to Pay.

This section, although granting to the board broad discretion in deciding whether to compromise and settle a judgment for fines and costs, does provide one concrete benchmark: The board is to exercise its authority only “if in the opinion of said board said judgment cannot be collected in full.” Accordingly, a party seeking compromise and settlement of fines and costs must provide information demonstrating that he is, and will continue to be, unable to pay the judgment in full. Ennis v. Williams County Bd. of Comm'rs, 493 N.W.2d 675, 1992 N.D. LEXIS 244 (N.D. 1992).

Harmless Error.

Judgment will not be reversed, because charge was not made a part of the judgment roll, where record fails to show defendant requested judge to charge jury in writing. Territory v. Christensen, 31 N.W. 847, 4 Dakota 410, 1887 Dakota LEXIS 6 (Dakota 1887).

Oral Judgment Basis for Judgment of Record.

The statute contemplates that the written judgment that is ultimately filed and made a part of the records is a copy of the judgment pronounced by the court. There is no authority to add any penalty in the written judgment not contained in the oral pronouncement. State ex rel. Perry v. Garecht, 70 N.D. 599, 297 N.W. 132, 1941 N.D. LEXIS 206 (N.D. 1941).

Fugitive Dismissal Rule.

Trial court appropriately adopted the reasoning of the fugitive dismissal rule in dismissing defendant’s criminal appeal where defendant escaped from custody and was involuntarily recaptured after filing his appeal. State v. Bell, 2000 ND 58, 608 N.W.2d 232, 2000 N.D. LEXIS 44 (N.D.), cert. denied, 531 U.S. 867, 121 S. Ct. 163, 148 L. Ed. 2d 110, 2000 U.S. LEXIS 5780 (U.S. 2000).

Transcript Not Required.

In exercising his right of appeal, a defendant is not required to procure a complete transcript of testimony unless incidents of the trial upon which he predicates error cannot be made a part of the record in any other way. State v. Moore, 82 N.W.2d 217, 1957 N.D. LEXIS 114 (N.D. 1957).

Law Reviews.

Article: The Law Of Unintended Consequences: The North Dakota Supreme Court Recognizes the Right to a Jury Trial for Noncriminal Traffic Offenses in Riemers v. Eslinger, see 86 N.D. L. Rev. 505.

Appeal from Guilty Verdict.

Where judgment of conviction has not been entered in the record, appeal may be taken from the record of the guilty verdict. State v. Jacob, 222 N.W.2d 586, 1974 N.D. LEXIS 157 (N.D. 1974).

Appeal from Justice Court.

No appeal will lie from an order of the district court dismissing an appeal from a justice court in a criminal action for jurisdictional reasons. Quarton v. O'Neil, 51 N.D. 842, 200 N.W. 1010, 1924 N.D. LEXIS 77 (N.D. 1924).

Appeal from Motion to Dismiss a Prosecution.

There is no right to appeal in this state in the absence of a statute conferring such right, and therefore, since this section does not authorize an appeal from an order denying defendant’s motion to dismiss the prosecution against him, no such appeal may be taken. State v. Johnson, 142 N.W.2d 110, 1966 N.D. LEXIS 184 (N.D. 1966).

Appeal from Municipal Court.

Criminal judgment entered after a district court held a trial anew was reviewed on appeal because it was appropriately designated an appeal, rather than a transfer. A municipal judge erroneously treated defendant's notice of appeal as a request for “transfer.” City of Napoleon v. Kuhn, 2015 ND 75, 860 N.W.2d 460, 2015 N.D. LEXIS 54 (N.D. 2015).

Appeal from Pretrial Diversion Order.

Because the matter was resolved by pretrial diversion, there was no trial, verdict, or final judgment, the order approving pretrial diversion and the order to pay restitution were not appealable orders; however, although defendant’s appeal was not authorized by statute, the supreme court could and did exercise its supervisory jurisdiction to review the orders. State v. Jorgenson, 2018 ND 169, 914 N.W.2d 485, 2018 N.D. LEXIS 161 (N.D. 2018).

Conditional Guilty Pleas.

Defendants who enter conditional guilty pleas may not appeal; the defendants have no order or judgment from which an appeal may be properly taken. State v. Schmitz, 431 N.W.2d 305, 1988 N.D. LEXIS 224 (N.D. 1988).

Counsel on Appeal.

Where indigent criminal defendant has a right to appeal as a matter of law and court appointed defense counsel believes the appeal is frivolous and without merit, the proper procedure is for the court to appoint another attorney to represent defendant on appeal as soon after the initially appointed counsel makes his opinion as to frivolity known to the court as is practical. State v. Lewis, 291 N.W.2d 735, 1980 N.D. LEXIS 236 (N.D. 1980).

When a second court-appointed counsel is appointed pursuant to the Lewis doctrine, the court-appointed counsel must fulfill the ethical duty to the client and pursue an appeal with full diligence even if the attorney feels the appeal is without merit. State v. Vondal, 1998 ND 188, 585 N.W.2d 129, 1998 N.D. LEXIS 200 (N.D. 1998).

Defendant’s constitutional right to counsel did not attach in an appellate proceeding as there was no federal or state constitutional right to appeal; thus, defendant’s right to counsel was not violated when the trial court neither informed him of his right to counsel nor appointed defendant counsel on appeal from his probation revocation and resentencing. State v. Causer, 2004 ND 75, 678 N.W.2d 552, 2004 N.D. LEXIS 171 (N.D.), cert. denied, 543 U.S. 906, 125 S. Ct. 139, 160 L. Ed. 2d 182, 2004 U.S. LEXIS 6076 (U.S. 2004).

County Court Sentence for Municipal Ordinance Violation.

There exists no statutory authority for an appeal from a sentence imposed by a county court as a result of a conviction for a municipal ordinance violation. City of Riverside v. Smuda, 339 N.W.2d 768, 1983 N.D. LEXIS 397 (N.D. 1983).

Lack of Jurisdiction.

There is no provision authorizing appeals from a denial of a defendant’s motion to dismiss the prosecution against him. The right of appeal is purely statutory in this state. Without statutory authorization to hear an appeal, a court will on its own motion take notice of the lack of jurisdiction. State v. Robideaux, 475 N.W.2d 915, 1991 N.D. LEXIS 173 (N.D. 1991).

Supreme Court dismissed defendant’s appeal on counts 1, 2, and 5, referenced in the order approving pretrial diversion, for lack of jurisdiction because the order was not appealable under N.D.C.C. § 29-28-06 and the Supreme Court declined to exercise its supervisory jurisdiction under N.D. Const. art. VI, § 2, and N.D.C.C. § 27-02-04. State v. Abuhamda, 2019 ND 44, 923 N.W.2d 498, 2019 N.D. LEXIS 38 (N.D. 2019).

Memorandum Opinion.

The standard in civil cases, that the supreme court will treat an appeal from a memorandum opinion as an appeal from the order contained in the memorandum opinion where the memorandum opinion contains an order which was intended as a final order and the order is one from which an appeal may be taken pursuant to statute, should be applied in criminal cases. State v. Gelvin, 318 N.W.2d 302, 1982 N.D. LEXIS 326 (N.D.), cert. denied, 459 U.S. 987, 103 S. Ct. 341, 74 L. Ed. 2d 383, 1982 U.S. LEXIS 4231 (U.S. 1982).

Defendant’s appeal from district court’s memorandum opinion was dismissed, by the supreme court where it was clear the memorandum opinion was not intended to be the district court’s final order. State v. Tinsley, 325 N.W.2d 177, 1982 N.D. LEXIS 338 (N.D. 1982), decided prior to the enactment of N.D.C.C. chapter 29-32.1.

Motion to Suppress.

In defendant’s conviction for possession of drug paraphernalia, defendant’s attempt to appeal the denial of her motion to suppress was not authorized by N.D.C.C. § 29-28-06; the supreme court, however, treated the appeal from the suppression order as an appeal from the judgment. State v. Guscette, 2004 ND 71, 678 N.W.2d 126, 2004 N.D. LEXIS 178 (N.D. 2004).

In a drug case, defendant was able to raise an issue relating to the denial of his motion to suppress evidence because, even though the motion was not appealable by itself, it was reviewable in an appeal from the subsequently entered criminal judgment. State v. Ostby, 2014 ND 180, 853 N.W.2d 556, 2014 N.D. LEXIS 184 (N.D. 2014).

Order Affecting Any Substantial Right.

Under subdivision 5 of this section, a “substantial right” is the right to notice and the opportunity to be heard. State v. Jefferson Park Books, 314 N.W.2d 73, 1981 N.D. LEXIS 363 (N.D. 1981).

Appellant, who was subject to an injunctive order barring him from future filings without the district court's approval, failed to show a district court's order denying him leave for further filings affected a substantial right under either N.D.C.C. § 28-27-02 or § 29-28-06. The district court's order denying appellant leave to allow him further filings was not an appealable order. Everett v. State, 2017 ND 93, 892 N.W.2d 898, 2017 N.D. LEXIS 106 (N.D. 2017).

Order After Judgment Not Affecting Substantial Right.

Order made after judgment denying prisoner’s motion for court records to be sent to him did not affect prisoner’s substantial rights and was not appealable. State v. Peterson, 334 N.W.2d 483, 1983 N.D. LEXIS 284 (N.D. 1983).

Defendant’s numerous discovery motions filed with the district court eight months after his conviction were not timely and did not affect any of his substantial rights, and, thus, denial of these motions was not appealable, as defendant’s appeal did not fall within any of the subsections of N.D.C.C. § 29-28-06. State v. Moore, 2003 ND 83, 662 N.W.2d 263, 2003 N.D. LEXIS 93 (N.D.), cert. denied, 540 U.S. 906, 124 S. Ct. 268, 157 L. Ed. 2d 192, 2003 U.S. LEXIS 6452 (U.S. 2003).

Order Changing Venue.

An order by the district court changing the venue in a criminal action is not appealable. State v. Fortune, 29 N.D. 289, 150 N.W. 926, 1915 N.D. LEXIS 12 (N.D. 1915).

An order changing the venue in a criminal action is not appealable, but it may be reviewed on appeal from the judgment. State v. Duffy, 65 N.D. 671, 261 N.W. 661, 1935 N.D. LEXIS 154 (N.D. 1935).

Order Constituting Revocation of Sentence As Appealable.

Where a commitment order pursuant to N.D.C.C. § 40-11-12 constituted revocation of a sentence which had been suspended conditioned upon payment of a fine, the order was appealable under the provisions of this section. City of Kenmare v. Murray, 404 N.W.2d 513, 1987 N.D. LEXIS 309 (N.D. 1987).

Order Deferring Imposition of Judgment and Sentence.

An order deferring imposition of judgment and sentence is not appealable; however, it is reviewable upon appeal from a verdict or judgment. State v. Kottenbroch, 319 N.W.2d 465, 1982 N.D. LEXIS 281 (N.D. 1982).

Trial court’s modification of an order deferring imposition of defendant’s sentence was appealable because (1) the modification maintained defendant’s guilty plea, imposed sentence, and was a judgment of conviction, and (2) the order affected defendant’s substantial rights. State v. Overholt, 2019 ND 173, 930 N.W.2d 185, 2019 N.D. LEXIS 178 (N.D. 2019).

Order Denying Closure of Pretrial Proceedings.

Defendant had no right to appeal from an interlocutory order denying a closure of pretrial proceedings. State v. La Fontaine, 293 N.W.2d 426, 1980 N.D. LEXIS 244 (N.D. 1980).

Order Denying Correction of Illegal Sentence.

An order denying correction of a sentence claimed to be illegal under N.D.R.Crim.P., Rule 35(a) is appealable under subsection 5 of this section. State v. Nace, 371 N.W.2d 129, 1985 N.D. LEXIS 351 (N.D. 1985), decided prior to the enactment of N.D.C.C. section 12.1-32-06.1.

An order denying correction of a sentence claimed to be illegal is appealable under this section. State v. Ennis, 464 N.W.2d 378, 1990 N.D. LEXIS 261 (N.D. 1990).

Order Denying Motion for Judgment of Acquittal.

An order denying a motion for judgment of acquittal is not appealable per se, but is reviewable as an issue if an appeal is taken from the judgment of conviction or a verdict. State v. Jenkins, 339 N.W.2d 567, 1983 N.D. LEXIS 404 (N.D. 1983).

Order Denying Reduction in Sentence.

Order denying defendant’s motion under N.D.R.Crim.P., Rule 35 for a reduction in sentence was not appealable under this section. State v. Jefferson Park Books, 314 N.W.2d 73, 1981 N.D. LEXIS 363 (N.D. 1981).

Order “Made After Judgment.”

Municipal court’s order denying defendant’s motion requesting a trial and the county court order dismissing his appeal constituted orders “made after judgment” affecting defendant’s substantial right to a jury trial and were thus appealable under subsection 5 of this section. City of Minot v. Mattern, 449 N.W.2d 560, 1989 N.D. LEXIS 248 (N.D. 1989).

Order Revoking Suspended Sentence.

Under subdivision 5 of this section, an order revoking a suspended sentence is appealable. State v. Lesmeister, 288 N.W.2d 57, 1980 N.D. LEXIS 220 (N.D. 1980).

Order Substituting Counsel.

A trial court’s order which vacated an earlier order substituting counsel and reappointed prior counsel as defendant’s attorney, was not appealable, although, in the absence of fraud or other similar circumstances, the interest and appearance of justice are ordinarily better served if the trial court abides by its decision rather than summarily reversing its prior order granting a request to substitute counsel. State v. Robertson, 502 N.W.2d 249, 1993 N.D. LEXIS 140 (N.D. 1993).

Order Suspending Imposition of Sentence.

Order suspending imposition of sentence, where no separate judgment of conviction was entered, complied with the requirements of N.D.R.Crim.P., Rule 32(b) for criminal judgments, and therefore served as judgment of conviction; thus, the appeal was properly before the Supreme Court. State v. Trosen, 547 N.W.2d 735, 1996 N.D. LEXIS 138 (N.D. 1996).

Pretrial Review.

—Certification of Factual Issues.

North Dakota has no method for certification of factual issues for appellate review prior to a criminal trial. State v. Lefthand, 523 N.W.2d 63, 1994 N.D. LEXIS 227 (N.D. 1994).

Right to Appeal.

Defendant has a right to appeal as a matter of law a verdict of guilty and judgment of conviction for robbery. State v. Lewis, 291 N.W.2d 735, 1980 N.D. LEXIS 236 (N.D. 1980).

This section does not include a right to appeal from an order dismissing the complaint, and there is no right of appeal in the absence of a statute conferring such right. State v. Yagow, 423 N.W.2d 804, 1988 N.D. LEXIS 129 (N.D. 1988).

Because North Dakota law does not authorize a third-person surety to appeal a bail bond forfeiture order, the Supreme Court concluded that defendant's father could not appeal from the bond forfeiture order and that the Supreme Court lacked jurisdiction over the appeal. State v. Brendel, 2016 ND 230, 887 N.W.2d 316, 2016 N.D. LEXIS 228 (N.D. 2016).

Rule 4(b) of Appellate Rules of Procedure.

Rule 4(b) of the North Dakota Appellate Rules of Procedure does not permit criminal appeals that are not allowed by this section. State v. La Fontaine, 293 N.W.2d 426, 1980 N.D. LEXIS 244 (N.D. 1980).

Order Suspending Imposition of Sentence.

An order suspending the imposition of sentence pursuant to former section 12-53-13 is not a final judgment and may not be appealed. State v. Carroll, 123 N.W.2d 659, 1963 N.D. LEXIS 112 (N.D. 1963).

Collateral References.

Appealability of order suspending imposition or execution of sentence, 51 A.L.R.4th 939.

Acquittal of Defendant.

Where trial court stated in the judgment, which it labeled as “Judgment of Acquittal”, that the evidence having been submitted and the court having rendered its verdict thereon, there existed a reasonable doubt as to defendant’s guilt requiring the charge against the defendant to be dismissed, judgment constituted an acquittal from which the state had no right to an appeal. State v. Flohr, 259 N.W.2d 293, 1977 N.D. LEXIS 214 (N.D. 1977).

There can be no appeal from a true judgment of acquittal. There can, however, be appeal from “[a]n order quashing an information or indictment or any count thereof.” City of Dickinson v. Kraft, 472 N.W.2d 441, 1991 N.D. LEXIS 127 (N.D. 1991).

Where the judgment of acquittal was based upon a lack of evidence as to a factual element of the crime of driving under the influence, i.e., proof that defendant had a blood-alcohol concentration of one tenth of one hundredth percent or more within two hours of operation or control of a vehicle, the order for dismissal was based upon factual elements, which was not appealed under this section. State v. Meyer, 494 N.W.2d 364, 1992 N.D. LEXIS 247 (N.D. 1992).

Jurisdiction of court.

Because the State of North Dakota lacked the ability to realistically appeal the district court’s orders denying a motion to amend the charge against defendant or the order denying a plea agreement, the Supreme Court of North Dakota concluded that the matter was an appropriate circumstance to consider exercising the court’s supervisory jurisdiction and considered the issues raised by the State on the merits. State v. Louser, 2021 ND 89, 959 N.W.2d 883, 2021 N.D. LEXIS 92 (N.D. 2021).

Reduction in sentence.

Supreme Court of North Dakota exercised jurisdiction over the State of North Dakota’s appeal when a district court ordered a reduction in a criminal sentence because the State could appeal as the district court’s reduction of the sentence affected a substantial right of the State. State v. Neilan, 2021 ND 217, 967 N.W.2d 765, 2021 N.D. LEXIS 224 (N.D. 2021).

Advised Verdict.

The state has no right of appeal where, in a prosecution for unlawful possession of intoxicating liquor, the court advised a verdict, and a verdict of acquittal was returned, and a judgment of acquittal was entered, and defendant’s bondsmen were exonerated, and the defendant was discharged. State v. Kelsey, 49 N.D. 148, 190 N.W. 817, 1922 N.D. LEXIS 29 (N.D. 1922).

Where the trial court advises a verdict, and the defendant is acquitted and cash bail is delivered to him and he is discharged, the state has no right of appeal. State v. Burdo, 54 N.D. 47, 209 N.W. 657, 1926 N.D. LEXIS 110 (N.D. 1926).

Confession.

A defendant’s confession was substantial proof of fact which was material to the proceedings. State v. Murray, 510 N.W.2d 107, 1994 N.D. LEXIS 4 (N.D. 1994).

Dismissal of Complaint, Information or Indictment.

The state may appeal from an order, made at the close of the state’s case, dismissing the information. State v. Allesi, 211 N.W.2d 733, 1973 N.D. LEXIS 120 (N.D. 1973).

Not only an order entered pursuant to the procedural device of a motion to quash, but any order which has the effect of quashing an information is appealable under subdivision 1 of this section; thus, dismissal of an action for insufficiency of evidence is appealable because its effect is to annul the information. State v. Howe, 247 N.W.2d 647, 1976 N.D. LEXIS 161 (N.D. 1976).

Order dismissing complaint has effect of quashing it, and is appealable under subsection 1 of this section. State v. Jelliff, 251 N.W.2d 1, 1977 N.D. LEXIS 235 (N.D. 1977).

A motion to dismiss a complaint is equivalent to a motion to quash an information, regardless of the court in which the complaint was originally filed. State v. Hanson, 252 N.W.2d 872 (N.D. 1977), decided under former N.D.C.C. § 33-12-40.

A motion to quash an information and a motion to dismiss an information are substantially equivalent, and an order which on its face, without more, has effect of quashing an information is appealable by state. State v. O'Boyle, 356 N.W.2d 122, 1984 N.D. LEXIS 392 (N.D. 1984).

An order of the district court dismissing a criminal complaint was an appealable order. State v. Swanson, 407 N.W.2d 204, 1987 N.D. LEXIS 325 (N.D. 1987).

The trial court’s dismissal of a complaint charging the defendants with violating the compulsory school-attendance law was appealable by the state under subsection 1 of this section, where the trial dismissed, the complaint because it found the compulsory school-attendance law unconstitutional. State v. Melin, 428 N.W.2d 227, 1988 N.D. LEXIS 175 (N.D.), cert. denied, 488 U.S. 942, 109 S. Ct. 367, 102 L. Ed. 2d 357, 1988 U.S. LEXIS 5035 (U.S. 1988).

A city has a right to appeal pursuant to this section when the complaint alleges conduct violative of a city ordinance which is also expressly prohibited by state statute. City of Bismarck v. Hoopman, 421 N.W.2d 466, 1988 N.D. LEXIS 85 (N.D. 1988).

Where, although labeled a judgment of acquittal, the trial court’s order did not constitute an acquittal, but was, instead, an order which had the effect of quashing an information, the order was appealable by the state under subsection 1. State v. Hogie, 424 N.W.2d 630, 1988 N.D. LEXIS 122 (N.D. 1988).

This section does not authorize the state to appeal from an acquittal, but the state may appeal from a dismissal of an information or other order, regardless of its label, that has the same effect as an order quashing an information. State v. Hogie, 424 N.W.2d 630, 1988 N.D. LEXIS 122 (N.D. 1988).

An order dismissing a criminal complaint has the same effect as an order quashing an information for the purposes of appealability, and can therefore be appealed by the city pursuant to this section. City of Wahpeton v. Desjarlais, 458 N.W.2d 330, 1990 N.D. LEXIS 136 (N.D. 1990).

When a dismissal is based upon legal conclusions, rather than the resolution of some or all of the factual elements of the offense charged, the dismissal is equivalent to an order quashing an information and is, therefore, appealable by the state. State v. Bettenhausen, 460 N.W.2d 394, 1990 N.D. LEXIS 179 (N.D. 1990).

The state may appeal from an order quashing an information or indictment or any count thereof. This includes the right to appeal from a dismissal, regardless of its label, that has the same effect as an order quashing an information. State v. Thill, 468 N.W.2d 643, 1991 N.D. LEXIS 71 (N.D. 1991).

Appeal of an order dismissing complaint which emanated from a pretrial conference, and which disposed of defendant’s motion at a stage in the proceedings before the trier of fact commenced to take evidence, was not barred by the Double Jeopardy Clause. State v. Hammond, 498 N.W.2d 126, 1993 N.D. LEXIS 53 (N.D. 1993).

The State has the right to appeal from an order of dismissal that has the same effect as an order quashing an information. State v. DuPaul, 509 N.W.2d 266, 1993 N.D. LEXIS 232 (N.D. 1993).

While court unification eliminated county courts, this section still allows the State to appeal an order dismissing a complaint. State v. Serr, 1998 ND 66, 575 N.W.2d 896, 1998 N.D. LEXIS 64 (N.D. 1998).

The State’s authority to appeal an order quashing an indictment or information includes appeals from orders of dismissal that have the same effect as orders quashing an information. City of Jamestown v. Snellman, 1998 ND 200, 586 N.W.2d 494, 1998 N.D. LEXIS 213 (N.D. 1998).