MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
for the Adoption of Rules of Criminal Procedure
March 23-24-25, 1972
Thursday, March 23, 1:30 p.m.
Hon. Ralph J. Erickstad
Hon. Gerald G. Glaser
Mr. John A. Graham
Hon. Norbert J. Muggli
Mr. Paul M. Sand
Mr. John G. Shaft
Hon. Kirk Smith
Hon. Eugene A. Burdick
Hon. Roy A. Ilvedson
Hon. James Morris
Hon. William S. Murray
Hon. Harry J. Pearce
Mr. Roger Persinger
Mr. Robert Vogel
Mr. Charles M. Travis, Criminal Code Reviser
Mr. Joseph H. Louwagie, Assistant Code Reviser
Miss Donna Fischer, Secretary
Judge Erickstad, Chairman, welcomed those present and referred to the Minutes of January 27-28-29, 1972, and the Errata Sheet (see attached).
MINUTES OF PREVIOUS MEETING
John Graham referred to page 2 of the Minutes, the fifth paragraph, which reads, "Judge Erickstad responded by stating that perhaps this is good, because it would force the municipalities to take proper action where they could otherwise issue the warrant." To clarify the meaning of that sentence, the following changes were made; after the words "to take proper action", the word "where" was changed to "when", and the words "could otherwise issue" were changed to read "are authorized to issue".
Mr. Graham also questioned the last sentence of paragraph 6 on page 3 of the Minutes, which reads, "Judge Pearce pointed out that by including these four statutes, the rule would be covering the district courts, the county courts of increased jurisdiction, the county courts and the municipal courts." He suggested that it should read, county courts, county justice courts, and the municipal courts. It was suggested that the language be changed to include county courts where applicable and county justice courts. There entered some discussion on the point; it was decided that the Committee would not restructure language that had been issued and the sentence was not amended.
Mr. Shaft MOVED the Minutes be approved as corrected by the Errata Sheet and the change on page 2, ¶5, as listed above. Second by Mr. Graham. Motion CARRIED; minutes of January 27-28-29, 1972, are approved.
Materials distributed at the start of the meeting included the following:
2) Copy of article entitled "Prosecution Must Keep Its Bargain With Accused", Supreme Court Report, March, 1972, Volume 58 291.
3) Copy of 6-page letter from Leonard Bucklin dated January 26, 1972, and 2-page letter from same dated January 27, 1972, containing his comments on the Rules.
4) Table of Statutes Affected, Titles 33 and 40, dated 3/13/72.
5) Errata Sheet, Minutes of Rules Committee meeting of January 27-28-29, 1972.
6) Explanatory Note--Rule 23 and/or Rule 5(b), dated 3/20/72.
7) Memo to Judge Ilvedson dated 2 March 1972, pertinent to Rules 7 and 15.
8) Two-page republication of Rule 12, showing proposed changes in legislative form.
9) Explanatory Note--Rule 5, dated 3/20/72.
10) Explanatory Note--Rule 5.1, dated 3/20/72.
11) Explanatory Note--Rule 8, dated 3/20/72.
12) Explanatory Note--Rule 9, dated 3/21/72.
13) Explanatory Note--Rule 21, dated 3/20/72.
14) Explanatory Note--Rule 22, dated 3/20/72.
Mr. Travis addressed the Committee with reference to the material that was presented to the Committee. He referred specifically to a recent Supreme Court case on plea bargaining, which will be considered in conjunction with Rule 11; a letter with suggested comments on Rules 1-20 from Leonard Bucklin; the Table of Statutes Affected in Titles 33 and 40; a note to explain the Committee's action on trial by jury, to be inserted either in the Explanatory Note to Rule 5 or to Rule 23; a memorandum to Judge Ilvedson concerning Rule 7, the purpose of which is to permit the Committee to take action on Rule 7 without Judge Ilvedson being present. The next item was Rule 12, with corrections, to replace the copy submitted earlier with Rules 7 through 20 in the legislative form. And, the Explanatory Notes for Rule 5 and for Rules 8, 9, 20, and 21 pursuant to the Committee's request to have the Explanatory Notes shortened.
Mr. Travis noted that Joseph Louwagie will be employed fulltime by the Court during the summer months. He also explained plans to hire another reviser. The Committee then took up the question of authorizing Mr. Travis to hire another code reviser, to begin work in August, at a salary not to exceed $750 per month. Judge Erickstad spoke to this, explaining that there will be two revisers. Mr. Graham MOVED approval by the Committee to seek an advisor, at a "salary to be approved by the Chairman of this Committee". Second by Judge Smith. CARRIED.
Judge Muggli suggested that the Committee rely on the work they have done previously with respect to rules to which there have been no changes, and perhaps this reliance would facilitate the rapid consideration and passage of that rule.
The RECORD notes that Chairman Erickstad appointed Mr. Paul Sand to act as Interim Chairman.
Mr. Graham noted that the Committee was now exceeding the agenda by 15 minutes.
Since Mr. Vogel was not present, Acting Chairman Sand read the note for Rule 6, Grand Jury, as follows:
Rule 6--Explanatory Note (Rule preserved in blank for possible future use)
"The committee recommends that no rule be adopted pertaining to grand juries.
"The committee doubts whether any changes in statutory grand jury procedure can be made by rule in view of Section 8 of the North Dakota Constitution which provides that 'the legislature' may change, regulate or abolish the grand jury system.
"The 1971 legislature enacted a complete revision of the grand jury statutes. (Chapter 29-10.1 NDCC)"
Mr. Graham MOVED to confirm the adoption of this note for Rule 6. Second by Mr. Shaft. The motion CARRIED unanimously to adopt Rule 6 in that form (see attached).
RULE 5--Explanatory Note
The next item under consideration by the Committee was the Explanatory Note to Rule 5, Initial Appearance Before the Magistrate (Judge Smith--sponsor). [Note: see copy dated 3/20/72, distributed at the meeting.] Judge Smith explained that the changes made were to shorten the note and to pick up the recent North Dakota case of State v. Barlow, 193 N.W. 2d 455.
The question was raised as to whether the note explaining the trial by jury provision should be included in the Explanatory Note to Rule 5 (see Explanatory Note--Rule 23 and/or Rule 5(b), dated 3/20/72), or whether the provision for trial by jury would be more appropriately placed in Rule 23, Trial by Jury or by Court. There was discussion on the matter. Tentative adoption of this Note,
for reconsideration under Rule 23, was MOVED and then WITHDRAWN. It was decided to strike the words "and/or Rule 5(b)" from the title line, and as there would be other language changes, ACTION WAS DEFERRED.
Judge Smith MOVED the adoption of the Explanatory Note to Rule 5. Judge Glaser seconded the motion. Vote was taken and the motion PASSED. (see attached).
Misc: Mr. Graham raised a point for clarification; the copies of Rules 1 through 5.1 which were mailed to Committee members with the Minutes of the last meeting are the Rules to which these explanatory notes refer.
RULE 5.1--Explanatory Note
Judge Smith MOVED the adoption of the Explanatory Note to Rule 5.1, Preliminary Examination. [See copy dated 3/20/72, distributed at the meeting.] Seconded by Judge Muggli. No discussion. Question was called; the motion PASSED.
RULE 7, The Indictment and the Information.
The Committee then took up consideration of Rule 7. It was noted that Judge Ilvedson's comments re the Rule are contained in the memo distributed earlier; it should be noted that in 7(d), Surplusage, line 2, the words "the court" should be stricken and reinserted to read, "...as surplusage and the court, on motion of either party or upon its own motion, may strike..."
There was a question raised concerning 7(a), "All prosecutions in the district court, including appeals, shall be prosecuted by indictment or information." It was noted by Judge Muggli that there was some question in the district courts regarding appeals from justice courts as to whether an information should be filed on that appeal or whether the appeal may be maintained in the district court through the stipulation of both parties that they proceed on the complaint. In explanation, he cited Section 33-12-40 (Appeal--Trial anew--Proceedings.), noting that "If he [the appellant] does not object to the complaint for the causes above specified, or if his objections are overruled, he must be required to plead as to an indictment or information without regard to any plea entered before the justice. In other respects, the proceedings shall be the same as in criminal actions originally commenced in the district court and judgment shall be rendered and carried into effect accordingly."
Mr. Graham questioned the third sentence in Rule 7(c), Nature and Contents, which reads, "All prosecutions shall be carried on in the name and by the authority of the State of North Dakota and shall conclude 'against the peace and dignity of the State of North Dakota'." He suggested a change to read, "All prosecutions by indictment or information shall be carried on ...", which, he said, would have the effect of not inferring that municipal prosecutions shall be by indictment or information. Judge Smith agreed with Mr. Graham's suggestion.
Judge Muggli suggested that to resolve the issue of prosecutions by appeal from municipal courts, that language be inserted as an exception clause, so that the third sentence would read, "All prosecutions except appeals from municipal courts shall be ...".
John Graham noted from the annotations to Section 97 of the North Dakota Constitution, the case of Litchville v. Hanson, 19 N.D. 672, 124 N.W. 1119, which is cited for the proposition that city and village ordinances, though penal in character, are not criminal laws and are covered by this section.
Judge Muggli MOVED an amendment to the third sentence of subdivision (c) of Rule 7, to read as follows:
"All prosecutions except appeals from municipal courts shall be carried on in the name and by the authority of the State of North Dakota and shall conclude 'against the peace and dignity of the State of North Dakota'."
Second by Judge Smith.
Mr. Graham MOVED a SUBSTITUTE MOTION to amend Rule 7 (c), line 3, by adding the words "by indictment or information" after the words "All prosecutions". The motion received a second; but was WITHDRAWN.
It was noted that the word "information" in line 8 of the third paragraph of the Explanatory Note should be changed to read "indictment".
Mr. Travis noted the following changes under Statutes Affected:
1) Sections 29-11-09, 29-11-10, and 29-11-11 should be included as Superseded;
2) Section 29-11-50 should be listed as Considered, not Superseded;
3) Section 29-11-48 should be included as Considered, and the line "Retained in Part: ..." can be stricken; and
4) Sections 29-11-53, 29-11-54, and 29-11-55 should be included as Considered.
The Committee decided to proceed on the basis that each statute would be noted less there was objection to the manner in which it had been listed, it would be accepted in the manner indicated.
29-11-01 no objection
29-11-02 no objection
29-11-03 no objection
Section 29-11-04 (Definitions.) was listed as "Considered"; however it was suggested by Mr. Graham that it should be superseded because these definitions are handled in other areas of the Code and they are not relevant.
Mr. Graham MOVED that Section 29-11-04 be listed as Superseded. Second by Mr Shaft. Question was called on the motion and the motion CARRIED.
29-11-05 no objection
29-11-06 no objection
29-11-07 no objection
29-11-08 Judge Muggli asked whether the committee has the power to supersede Section 29-11-08 (Form of indictment.); however there was no further objection.
John Graham raised a question as to whether the Committee would undertake an appendix of forms. The indication was that it might be desirable to undertake such a suggestion. On that basis, a
MOTION was made by Judge Smith to supersede Section 29-11-09 (Form of information.). Seconded by John Graham. The question was called; the motion PASSED.
Judge Muggli MOVED that Sections 29-11-10 (Charging the offense.) and 29-11-11 (Bills of particulars.) be superseded. The motion was seconded.
Judge Erickstad questioned whether the Committee had contemplated any major changes from the provision as listed in Section 29-11-10. It was noted that Section 29-11-10 makes discretionary the description of the offense by title or number, and subdivision 7(c) of the Rule makes it mandatory, noting the language, "The indictment or information shall state for each count ...".
Question was called on Judge Muggli's motion to place Sections 29-11-10 and 29-11-11 is the list of Statutes Superseded. Motion CARRIED.
John Graham MOVED to have Section 29-11-10.1 added to the list of Statutes Superseded. The reason for superseding 29-11-10.1 (Charging crime in separate counts and consolidating Indictments and informations.) is that it is covered by Rules 7 and 8. Mr. Graham's motion was seconded by John Shaft.
The RECORD notes that Robert Vogel is now in attendance at the committee meeting.
John Graham raised a question concerning the statute which applies in more that one section of the Code, and questioned whether more than one Rule could supersede a statute. Judge Jerry Glaser questioned whether there would be one or more one table of statutes superseded. Paul Sand, as Acting Chairman, suggested that the Committee had not concluded the final system that they would utilize.
It was noted that there was some sentiment for utilizing the same procedure as used in the Civil Rules. Judge Smith suggested that one idea to handle the problem might be to list the statute, followed by all the rules which supersede that statute, if more than one. He noted further that it would be difficult for one rule to absolutely correlate with all of a statute, or vice versa.
Question was called on the motion to supersede Section 29-11-10.1. The motion PASSED and the statute is superseded.
29-11-12 no objection
29-11-13 no objection
Section 29-11-14 (Name of defendant.) was listed as Considered. John Graham suggested that it is not necessary to have a method for charging other than by true name, and therefore, that statute should be superseded, but that that language should be included in the Rule.
RECONSIDERATION OF RULE 7
MOTION was made by John Graham and seconded by John Shaft to reconsider the action that the Committee took in passing Rule 7. It was noted that the purpose for this was to amend Rule 7 to include language such as found in the warrant, so that Section 29-11-14 can safely be superseded. There was no discussion and the motion PASSED.
Judge Smith MOVED to amend subdivision (c) of Rule 7, the first sentence, after the word "information", by adding "shall name or otherwise identify the defendant and". Second by Mr. Graham. Question was called on the motion and the motion PASSED.
Mr. Graham requested that the text of Rule 7 be held in abatement until the Committee's work was completed on the Explanatory Note and Statutes Affected, in the event that more language would be necessary. Final re-adoption of Rule 7 is pending.
Mr. Graham MOVED that Section 29-11-14 be superseded. Second by Judge Muggli; the motion CARRIED.
29-11-15 no objection
29-11-16 no objection
29-11-17 no objection
29-11-18 no objection
29-11-19 no objection
29-11-20 no objection
29-11-21 no objection
29-11-22 no objection--Judge Erickstad suggested in discussion of Section 29-11-22 (Characterization of Act.) that there be a note in the Explanatory Note suggesting that the Committee's action by superseding the statutes is not intended to mean that all the requirements of the statutes now be implemented. He noted that the Committee, with respect to 29-11-22, believed these provisions to be permissible whether stated in the statute or not.
John Graham suggested that an explanatory note on each one of these items would require voluminous notes that would be impractical.
There was no further discussion.
29-11-23 no objection
29-11-24 no objection
Section 29-11-25 was listed as Considered. It was MOVED by John Shaft, seconded by Judge Muggli, that Section 29-11-25 (Name of person other than defendant.) be superseded. Motion CARRIED.
29-11-26 no objection
29-11-27 no objection
29-11-28 no objection
Section 29-11-29 was listed as Considered. John Graham MOVED that Section 29-11-29 (Meaning of words and phrases.) be listed under Statutes Superseded, noting that it simply states a truism. Second by Judge Muggli. Judge Glaser noted that there was another statute under general definitions saying the same thing. There was no further discussion, vote was called and the motion CARRIED.
29-11-30 no objection
29-11-31 no objection
29-11-32 no objection
29-11-33 no objection
29-11-34 no objection
29-11-35 no objection
29-11-36 no objection
29-11-37 no objection
29-11-38 no objection
29-11-39 no objection
29-11-40 no objection
29-11-41 no objection
29-11-42 no objection
29-11-43 no objection
29-11-44 no objection
29-11-45 no objection
29-11-46 no objection
29-11-47 no objection
It was noted that Section 29-11-48 (Postponement for prejudice--Motion--Appeal.) was superseded in part, that is, the entire Section except for the last sentence, which reads, "No appeal, or motion made after the verdict, based on any such defect, imperfection, omission, or variance shall be sustained unless it is affirmatively shown that the defendant was in fact prejudiced thereby in his defense upon the merits."
John Graham suggested that Rule 7(c) pick up that sentence rather than to leave it standing alone because, he felt, the sentence alone wouldn't make sense, when referring to "based on any such defect..." without prior reference to such defect.
Judge Erickstad favored eliminating the entire Section. Judge Smith suggested the possibility of the Committee superseding the entire Chapter with the help superseding this particular subsection.
John Graham MOVED to supersede Section 29-11-48. Seconded by Judge Muggli. Question was called, and the motion CARRIED.
29-11-49 no objection
Section 29-11-50 (Severing of indictment or information or bill of particulars required.) had been listed in the Explanatory Note as Considered. It was decided that this Section described a situation so unique and remote, it was finally Superseded.
29-11-51 no objection
Sections 29-11-52, 29-11-53, 29-11-54, and 29-11-55 which had been listed as Considered in the Explanatory Note, were reviewed at this time.
Mr. Graham MOVED that Section 29-11-52 (Amendment after verdict.) be superseded. Seconded by Judge Muggli. Question was called and the motion CARRIED unanimously.
With regard to Section 29-11-53 (Disclosing the finding of an indictment or the filing of an information forbidden.), it was questioned whether this statute is more substantive rather than procedural in view of the fact that it specifies penalty, or makes a crime. There was some discussion, and Mr. Graham referred to Section 12-12-10 (Disclosing fact of presentment or indictment having been found--Misdemeanor.), as follows:
"Every grand juror, state's attorney, clerk, judge, or other officer who, except by issuing or in executing a warrant to arrest the defendant willfully discloses the fact that a presentment or indictment for a felony has been made before the defendant has been arrested, is guilty of a misdemeanor."
John Graham MOVED that Section 29-11-53 be superseded. Second.
Mr. Graham MOVED that Sections 29-11-54 Inspection of indictment, information.) and 29-1155 (Indictment or Information lost, mislaid--Copy may be used.) be listed as superseded. Seconded by Judge Smith. Question was called and the motion CARRIED.
29-11-56 no objection
Section 29-11-57 (Names of witnesses to be endorsed on indictment or information.) was listed in the Explanatory Note as Considered. It was noted that the entire Chapter could be superseded with the inclusion of this statute; however there was some disagreement as to whether provision 29-11-57 was necessary.
Judge Smith suggested superseding the Section and noted the recent case of State v. Manning, 134 N.W. 2d 91, in which the Supreme Court said,
"all that this section has required is that the names of witnesses on whose evidence the information is based be endorsed on such information at the time it is filed. The state's attorney need no longer endorse on the information the names of all witnesses for the prosecution known to him at the time of the filing."
John Graham suggested that language be added to subdivision (c) of Rule 7 to provide for the substance of Section 29-11-57, to read as follows: "The names of the witnesses upon whose evidence the information or indictment is based shall be endorsed on the information or indictment at the time it is filed."
Judge Glaser suggested including the language of Section 29-11-57 as a subsection (g) of Rule 7. Mr. Vogel MOVED that the language of Section 29-11-57 be included as subdivision (g) of Rule 7, With the exception of changing "state's attorney" to "prosecuting attorney". Motion was seconded by Judge Glaser.
Judge Smith was contrary to such an action and wished the Committee to reconsider and to read into the rule language from the Manning case. Mr. Vogel noted that making reference in the Explanatory Note to State v. Manning was objectionable because the first sentence in that note states that it is not a fatal defect to exclude the names of the witnesses in the indictment or information.
The vote was called on Mr. Vogel's motion. With one dissenting vote of Judge Smith, the motion PASSED.
John Graham MOVED that Section 29-11-57 be superseded. Seconded by John Shaft. No discussion. The motion PASSED.
29-11-58 no objection
John Graham MOVED to adopt the text of Rule 7 as amended. Seconded by Judge Glaser. There was no discussion. The question was called and the motion PASSED.
The Committee RECESSED until 9:00 Friday morning.
Friday, March 24
Hon. Ralph J. Erickstad
Hon. Gerald G. Glaser
Mr. John A. Graham
Hon. Norbert J. Muggli
Hon. William S. Murray
Mr. Paul M. Sand, Acting Chairman
Mr. John G. Shaft
Hon. Kirk Smith
Mr. Robert L. Vogel
Hon. Eugene A. Burdick
Hon. Roy A. Ilvedson
Hon. James Morris
Hon. Harry J. Pearce
Mr. Roger Persinger
Mr. Charles M. Travis, Criminal Code Reviser
Mr. Joseph H. Louwagie, Assistant Code Reviser
Miss Donna Fischer, Secretary
The meeting was called to order at 9:15 a.m.
The staff presented a proposal for Rule 7, to include in subdivision (c) of Rule 7 language from the case of State v. Manning, 134 N.W. 2d 91, which is an interpretation of Section 29-11-57, which would serve to eliminate the necessity for a subdivision (g). It would read as follows;
"(c)Nature and Contents.
The indictment or the information shall name or otherwise identify the defendant and shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall be signed by the prosecuting attorney. All prosecutions, except appeals from municipal courts, shall be carried on in the name and by the authority of the State of North Dakota, and shall conclude "against the peace and dignity of the State of North Dakota". Except as required by this Rule, the indictment or information need not contain a formal commencement, a formal conclusion, or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specific means. The indictment or information shall state for each count the official or customary citation of the statute, Rule, regulation, or other provision of law which the defendant is alleged to have violated. The names of witnesses upon whose evidence the information is based shall be endorsed upon the information at the time it is filed. Error in the citation or its omission shall not be grounds for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not prejudicially mislead the defendant."
Mr. Vogel pointed out that he disagreed with that provision because, in his words, failure to include the names of witnesses would be "fatal error".
The staff noted another reason for including this language in Rule 7 was the following proposed language from Rule 16;
"Rule 16(a)(1)(vi) Prosecution Witnesses.
Upon motion of the defendant the court may order the prosecuting attorney to furnish to the defendant a list of the names and addresses of all witnesses which the prosecuting attorney intends to call at the trial, together with any record of prior felony convictions of any such witness which is within the knowledge of the prosecuting attorney. Names and addresses of prosecution witnesses shall not be subject to disclosure if the prosecuting attorney certifies that to do so may subject the witness or others to physical or substantial economic harm or coercion. Where a motion for discovery of the names and addresses of witnesses has been made by a defendant, the prosecution may move the court to perpetuate the testimony of such witnesses in a hearing before the court, in which hearing the defendant shall have the right of cross-examination."
Mr. Vogel felt this might conflict with the second sentence of Section 29-11-57, which reads, "A failure so to endorse the said names shall not affect the validity or sufficiency of the indictment or information, but the court in which the indictment or information was filed, upon application of the defendant, shall direct the names of such witnesses to be endorsed."
Judge Erickstad suggested that some conflict existed between the provision under Section 29-11-57 and the Federal practice. Specifically, where one deals with underworld figures or personalities, it may be undesirable to include the names of all witnesses upon whom the indictment or information is based.
A MOTION was made by Judge Smith and seconded by John Graham to reconsider the action by which the Committee adopted Rule 7. No discussion. A hand vote showed four voting in the negative, and the motion was DEFEATED.
John Graham noted that there was some dispute regarding the proposal for Rule 7 as prepared by the staff and submitted to the Committee. In subdivision (a), the words "prosecutions" and "including appeals" were indicated for elimination, and the words "original proceedings" are indicated as included. Mr. Graham noted that this was not the Committee's intent and if it were, it is in conflict with the Explanatory Note as it now reads.
Mr. Sand as Acting Chairman read for the record subdivision (a) of Rule 7, as follows: Use of Indictment or Information. "All prosecutions in the district court, including appeals, shall be prosecuted by indictment or information."
Explanatory Note--Rule 7
Acting Chairman Sand called the Committee's attention to the Explanatory Note (as distributed, dated 3/24/72) and noted that the Committee was now at the point to consider the statutes. He noted that the Explanatory Note as prepared by the staff (two pages) indicates Chapter 29-11 as superseded with a note that Section 29-11-10.1 is also superseded--which raises the question as to whether superseded an entire Chapter also supersedes new material.
Judge Smith suggested that the words "as amended", in parenthesis, would include any amendments and all additions to the Chapter in question.
John Graham, as assistant director of the Legislative Research Council, was called upon to advise the Committee. He noted that it was his opinion that by repealing or superseding a chapter, the entire chapter is superseded including any amendments; however, the procedure used by the Legislative Research Council is to supersede wherever any change has been made.
Judge Muggli made reference to Section 33-12-40 (Appeal--Trial anew--Proceedings.) which he urged the Committee to examine to determine whether it has relevance to subdivision 7(a). It was noted, however, that Section 33-12-40 is superseded by Rule 37.
The Committee took up consideration of those statutes listed as "Considered".
29-09-01 John Graham suggested that Section 29-09-01 (Public offenses, how prosecuted.) be superseded, but noted the application of the statute in a case for the removal of a public official by judicial proceeding under 44-10. He noted further that such provision for legislative impeachment procedures was included in Chapter 9 of Title 44.
Judge Smith noted that Chapter 44-10 saves itself from the Committee's consideration by the language in Section 44-10-01 (Additional proceedings-- Removal from office.), "In addition to the proceedings mentioned in chapter 32-13 of the title Judicial Remedies and chapters 44-02 and 44-11 of this title, and apart and distinct from any other criminal action or proceedings, the provisions of this chapter are adopted to obtain a judgment of removal from office."
Judge Erickstad suggested that the Committee would have to supersede Section 29-09-01 because of subdivision (a) of Rule 7, which provides that all prosecutions in the district court including appeals shall be by indictment or information.
John Graham then MOVED to have Section 29-09-01 superseded. The motion was seconded; there was no discussion. The question was called and the motion CARRIED unanimously.
29-09-02 no objection
29-09-03 Judge Muggli suggested that the legislature should be called upon to take some action on this section. He said the requirement that the defendant give an affidavit of confession between terms seemed to be unnecessary.
Judge Erickstad suggested that the problem was further compounded in light of the recent Supreme Court decisions.
Judge Muggli suggested superseding the statute.
Judge Erickstad suggested considering Section 29-09-04 (Appearance in court--Chambers--Plea.) together with 29-09-03 (Prosecution on information without waiting for term of court.).
It is noted that 29-09-03 and 29-09-04 are superseded by Rule 19.
Judge Muggli MOVED the supersession of Sections 29-09-03 and 29-09-04. Seconded by Judge Smith. Acting Chairman Sand called for the question on the supersession of 29-09-03 and -04. Vote was taken; the motion CARRIED unanimously.
29-09-02 The Committee returned to consideration of Section 29-09-02 (Prosecution on information--In what cases.) and discussed the phrase "term of court". It was suggested that Section 29-09-02 is not necessary, because as a practical matter, statutes hold that the courts are always open in the state. Judge Muggli noted that he never dismisses the jury because of the probability that a requirement for a jury may arise.
Acting Chairman Sand called for a motion to either retain or supersede Section 29-09-02.
Judge Muggli MOVED to have Section 29-09-02 be retained. Seconded by Judge Glaser. There was division on the voice vote and a hand vote was called for. Motion to retain CARRIED by a vote of 4:3.
29-09-05 Section 29-09-05 (Right to file information when defendant discharge at preliminary examination.) was considered next.
Judge Erickstad suggested that Judge Smith read the revisor's notes (1943 Code) on 29-09-05, which follows;
"This section is new. It was strongly recommended by the Committee on Rules that it is essential to the completion of the law relating to domestic prosecution, the effects of great economy in this, that under the existing statutes it is possible to arrest a man after his discharge upon a preliminary examination and to continue to do so far as the statutes are concerned after repeated discharges. The proposed section simplifies the procedure in that it makes it possible to proceed without re-arrest and a further preliminary examination. At the same time the defendant is protected against the filing of an information by the requirement that it must have the approval of the court before it can be filed."
Acting Chairman Sand called for a motion on the disposition of Section 29-09-05 MOTION was made by John Graham, seconded by Judge Glaser, to supersede Section 29-09-05. The motion CARRIED, with three members objecting.
29-09-06 Judge Erickstad suggested that Sections 29-09-06 (State's attorney must inquire into charges.) and 29-09-07 (Procedure when no information is filed.) are related in that one applies where the states attorney has a basis for filing a charge, and the other applies where he does not have a basis for filing an information. Therefore, if one is retained the other should also be retained.
Mr. Vogel MOVED to list Sections 29-09-06 and 29-09-07 as Considered. Seconded and the motion CARRIED unanimously.
It was noted that Sections 29-09-08 through 29-09-11 were repealed by the adoption of 29-10.1.
The MOTION was made by John Graham, seconded by John Shaft, to list Section 29-07-18 (Procedure-Accused discharged.) as Considered under Rule 7. There was discussion on the meaning of the term "considered". Question was called and the motion CARRIED to have Section 29-07-18 listed as considered.
Misc: Judge Smith made a MOTION to list the title or subtitle as well as the number of a rule when citing it as a cross reference. Seconded by John Graham. Motion PASSED unanimously.
Explanatory Note--Rule 7
John Graham raised a question with regard to the language in the text of the Explanatory Note, and MOVED to include an additional paragraph to be numbered subdivision (g), to read as follows:
"Subdivision (g) is the former text of Section 29-11-57 of the North Dakota Century Code, with the words 'prosecuting attorney' substituted for the words 'state's attorney'."
Seconded by Judge Erickstad.
Judge Smith suggested, in addition to the language proposed by Mr. Graham, that a reference to "see also, State v. Manning, 134 NW 2d 91" be included.
A vote was called on the motion to adopt paragraph (g) as proposed by John Graham, with the inclusion of the cite to Manning. The motion PASSED by unanimous vote.
Acting Chairman Sand then called for a motion from the floor for the adoption of the Explanatory Note to Rule 7 in its entirety. John Graham MOVED, seconded by Judge Murray, that the Explanatory Note for Rule 7 be adopted as amended. The motion PASSED by unanimous vote.
Misc: The RECORD notes that Judge Murray was absent from the meeting on Thursday afternoon due to the fact he was in Sheridan, Wyoming.
The Committee RECESSED for coffee. Upon RECONVENING, Mr. Robert Vogel took the chair as acting chairman.
RULE 5--Statutes Affected
It was noted that the statutes affected had not been discussed for Rule 5; therefore, Mr. Vogel called the Committee's attention to that matter.
29-05-04 (Accused arrested without warrant.) no objection
29-07-01 (Magistrate's duty--Testimony may be taken.) no objection
29-07-02 (Waiver of examination.) no objection
29-07-03 (Examination of witnesses.) no objection
29-07-04 (Magistrate must allow accused counsel.) no objection
29-07-05 (The preliminary examination.) It was noted that Section 29-07-05 should more correctly come under Rule 5.1.
29-07-06 It was noted that Section 29-07-06 (Change of place of hearing--Procedure.) hadn't been listed, but should be considered.
Judge Erickstad suggested that it be superseded because the Committee has a general provision for change of place of hearing.
John Graham noted that the Committee had a rule, Rule 24.1, Demand for Change of Trial Judge, which had been deleted from consideration. In lieu thereof, he had submitted a proposal for legislation to resolve matter.
Mr. Graham proposed a SUBSTITUTE MOTION that Sections 29-07-19 through 29-07-22 be deleted from the Explanatory Note to Rule 5 and consider under Rule 5.1. Seconded by Judge Smith. Vote was taken and the motion CARRIED.
29-07-23 Section 29-07-23 (When bail not taken.) was listed as Considered.
It was noted that since this provision applied to the taking of bail it would more appropriately be listed under Rule 46, or reference at least should be made to Rule 46.
Judge Smith suggested that Sections 29-07-23 to the end of that Chapter, that is, through 29-07-32, because of their usefulness, should be considered under Rule 5.1. This was seconded by John Graham. Question was called; the motion CARRIED by a unanimous vote.
The Committee RECESSED for lunch.
The Committee RECONVENED Friday afternoon with the following changes in attendance. Judge Harry Pearce was present, and Judge Glaser was absent.
The first item of business was consideration of Titles 33 and 40 as applicable to Rule 5.
33-12-07 Judge Pearce was called to comment upon the various statutes. He noted that Section 33-12-07 (Execution of warrant.) Is unnecessary and therefore should be superseded.
Judge Pearce MOVED to have Section 33-12-07 listed as superseded. Seconded by Judge Murray. Question was called; motion CARRIED unanimously.
33-12-09 no objection
Section 40-18-15 (Jury trials in cases arising under the ordinances of a city.) was listed as superseded. In considering Section 40-18-15, however, the question, was called and a vote was taken to delete it. There was a division, however the motion CARRIED, with two opposing.
John Graham noted that he voted in the affirmative for the purpose of accomplishing a similar objective in the passage of the Federal Criminal Code now undertaken by the Judiciary 'B' Committee of the legislature. He continued, noting that he felt that this area is a substantive right created by the legislature. The Judiciary 'B' Committee, of which he is a member, had before it the dilemma of a situation in which an individual may be granted two complete and separate jury trials in a moving motor vehicle violation, whereas in a murder case, an individual is entitled to only one jury trial. It was his intent to relate the fact that a very "prestigious" rules committee had declared this provision to be undesirable.
40-18-17 no objection
40-18-18 no objection
Judge Smith noted that the question concerning trial by jury is mooted to some extent by the Jury Reform Act.
Paul Sand referred to Section 29-09.1-03 (pocket part), which defines the term "court", as follows: "'Court' means the district court of this state, and includes, when the context requires, any judge of the court".
Mr. Sand also noted Section 27-09.1-21 (District courts and county courts having increased jurisdiction may use each other's jury panels.), which provides, "A judge of the district court or the judge of a county court having increased jurisdiction may, by order, use an undischarged jury panel ordered, drawn, and summoned by the other, at any general, special, or adjourned term of the court for a county mutually served by such courts and for which no jury panel has been ordered."
Judge Pearce then MOVED that Section 40-18-16 (Procedure when jury demanded in court of municipal judge.) be listed as superseded. The motion received a second and the question was called. Motion CARRIED unanimously.
EXPLANATORY NOTE--Rule 5.1
The Committee then took up consideration of the Explanatory Note to Rule 5.1, Preliminary Examination, and the statutes affected (see copy dated 3/20/72).
29-07-11 (referred from Rule 5) no objection
29-07-12 Section 29-07-12 (How witnesses examined.) was listed as superseded.
Judge Smith called attention to Sections 29-07-13 (Witnesses kept separate--Exclusion during the examination of any witness.) and 29-0714 (Persons not excluded.) and explained that these statutes pertain to sequestration of witnesses during a preliminary hearing, which is frequently used, and it becomes a policy question of the Committee as to whether or not they want to continue it.
Judge Smith MOVED to have Sections 29-07-12, 29-07-13, and 29-07-14 superseded, and to have language inserted in the Explanatory Note to the effect that, "Superseding of these statutes is based on the inherent power of the court to order a sequestration, when just, and the superseding of these statutes is not intended to prohibit the exercise of that power in accordance with the formal practice."
Seconded by Judge Pearce.
There was some discussion, including the question whether the court has the power to exclude people from the courtroom.
Judge Pearce withdrew his second; Judge Smith WITHDREW the motion.
Acting Chairman Vogel asked for disposition of Sections 29-07-13 and 29-07-14.
Judge Muggli MOVED to have 29-07-13 and 29-07-14 listed as Considered. Seconded by Paul Sand. Question was called and the motion CARRIED, one opposing vote.
29-07-15 It was noted that Rule 5.1(c), covers and changes the statute. Judge Muggli MOVED to supersede Section 29-07-15 (Testimony reduced to writing--Conditions--Payment.). Seconded by Judge Smith. CARRIED unanimously.
29-07-16 John Graham MOVED to have Section 29-07-16 (Accused may produce witnesses after state concludes testimony.) superseded. Seconded by Judge Smith.
Judge Muggli questioned the theory upon which the statute be superseded and suggested the possibility of including a comment in the Explanatory Note as to the reason for superseding the statute.
Judge Pearce noted that Rule 5.1(a), Probable Cause Finding, states that the defendant may produce evidence in his own behalf.
Question was called on the motion to supersede 29-07-16, and CARRIED unanimously.
29-07-17 John Graham MOVED that Section 29-07-17 (Keeping and disposition of depositions--Violation is a misdemeanor.) be superseded, in light of the fact that there is a statute in Title 12 that is almost verbatim making the offense a misdemeanor. Judge Pearce seconded, noting that this provision belongs in the substantive provisions of the Code.
Vote taken; motion CARRIED.
29-07-18 Judge Smith suggested including Section 29-07-18 (Procedure--Accused discharged.) as a subsection to Rule 5.1, in which case it could then be superseded.
Judge Muggli noted that the last sentence of Rule 5.1(b), which states, "The discharge of the defendant shall not preclude the prosecution from instituting a subsequent prosecution for the same offense," makes provision for this.
Judge Smith MOVED to reconsider the action by which the Committee approved Rule 5.1(b). Seconded by John Shaft.
Judge Pearce questioned the necessity for such an action.
Question was called on the motion; motion CARRIED.
Judge Smith then MOVED to substitute the entire language of Section 29-07-18, except the title, leaving the existing title in 5.1 (b), and inserting "prosecuting attorney" in place of "state's attorney".
Motion seconded by John Shaft.
It was suggested that a criminal information could not be filed in the district court unless the court was in session, however Paul Sand suggested that a criminal information can be filed in district court at a time with the clerk of court.
Acting Chairman Vogel called the question on Judge Smith's motion. Judge Smith, in defense of his proposal, suggested that this is a procedural safeguard to prevent "fluke" decision by a magistrate as a result of an erroneous decision.
A vote was finally taken, and the motion CARRIED, with a vote of five in favor.
MOTION was then made by Judge Muggli to supersede Section 29-07-18. Seconded by Paul Sand and CARRIED unanimously.
John Graham, in explanation of his favorable vote, said that it was his opinion that Section 29-07-18 should be superseded, but that was the only disposition that he wished for that statute. Judge Pearce concurred.
29-07-19 Mr. Sand MOVED Section 29-07-19 (Costs taxed when prosecution malicious.) be superseded. Second by Judge Muggli. Vote was called and the motion CARRIED.
29-07-20 Section 29-07-20 (Accused held to answer.) was listed as superseded. There was no objection.
It was suggested that Sections 29-07-21 (If offense not bailable defendant committed), 29-07-22 (When offense bailable), and 29-07-23 (When bail not taken) be considered together, and it was noted that these sections are covered by the bail provisions of Rule 46.
Judge Muggli MOVED to have Sections 29-07-20, -21, -22, and -23 superseded.
Motion seconded. The vote was taken and the motion CARRIED unanimously.
29-07-24 and 29-07-25 Judge Pearce suggested that these two statutes were unnecessary, because these provisions were taken into account in the proposed Rule 46, which is essentially the Federal Bail Reform Act of 1966.
He MOVED to supersede Sections 29-07-24 (Commitment--Procedure) and 29-07-25 (Form of commitment). Second by Paul Sand.
After some discussion, the vote was called and the motion CARRIED unanimously.
29-07-26 Section 29-07-26 (Magistrate must deliver papers to district court) was listed as Superseded. There was no objection.
29-07-27 It was suggested that Sections 29-07-27 through 29-07-32 be considered together.
There was some discussion.
Judge Smith MOVED to have Sections 29-07-27 through 29-07-32 listed as superseded under Rule 5.1. Motion was seconded. Vote was called and the motion CARRIED.
It was noted by Acting Chairman Vogel that Section 29-07-17 was listed in the Explanatory Note as Considered, but since that section had been superseded, it was suggested that the Committee strike that reference.
The Committee's attention was called to the cross-reference line in the Explanatory Note. John Graham MOVED an additional reference to Rule 5, The Initial Appearance Before the Magistrate. Seconded by Judge Smith. Question was called; the motion CARRIED by unanimous vote.
Paul Sand MOVED that Rules 5 and 5.1 be re-adopted as amended. Motion seconded by Judge Smith. Motion CARRIED unanimously.
It was decided to consider the Rules singly; MOTION was made to readopt Rule 5.1 as amended, Second by Judge Smith. CARRIED, with two opposed.
The Committee's attention was then called to Rule 8, Joinder of Offenses and of Defendants. Acting Chairman Vogel asked Mr. Travis to explain any proposed changes in Rule 8.
Mr. Travis noted for the Committee's convenience that the Rule is the same as the Federal Rule except for some minor style changes by Judge Burdick.
Paul Sand MOVED for the adoption of Rule 8 as previously adopted in its original form. This was seconded by Judge Murray. There was some minor discussion regarding the placement of commas in subdivision (a), however no decision was made. Question was called and the motion CARRIED.
Explanatory Note--Rule 8
The Committee next undertook consideration of the Explanatory Note for Rule 8. Under Statutes Affected, Sections 29-11-49 (Misjoinder, multiplicity, duplicity, and uncertainty.) and 29-11-51 (Appeal or motion denied unless defendant prejudiced.) were listed as Superseded. It is noted that Chapter 29-11 is superseded by Rule 7.
Mr. Graham MOVED to have Sections 29-11-49 and 29-11-51 remain as Superseded. Motion seconded by Judge Muggli. The question was called and the motion CARRIED.
Reference was made to Section 29-11-10.1 (pocket part). It was suggested that this should also be listed as superseded.
Paul Sand MOVED to have 29-11-10.1 (Charging crime in separate counts and consolidating indictments and informations.) listed as superseded under Rule 8. Motion was seconded by John Graham and CARRIED with no dissenting votes.
The Cross References to Rule 8 were considered next. It is noted that Rules 13 and 14 of the N.D. Rules of Criminal Procedure and Rules 18(a) and 20(a) of the N.D. Rules of Civil Procedure are listed as cross references.
John Shaft questioned the need for cross-referencing the Civil Rules. Mr. Travis noted that the cross references are included for the purpose of alerting the user of the Rules to any relationship between the Rule and the referencing material cited. It was suggested by Judge Pearce that cross referencing in this instance may be confusing.
Procedure: John Graham MOVED, by what he termed a "blanket motion", that the Committee not cross reference the Rules of Criminal Procedure with the Rules of Civil Procedure. Seconded by Judge Pearce. Question was called; the motion CARRIED unanimously.
The text of the Explanatory Note was read. John Graham MOVED that the Explanatory Note as amended be re-adopted. Paul Sand seconded. The motion PASSED unanimously.
The Committee recessed for coffee; reconvened with Judge Murray as Acting Chairman.
The Committee took up consideration of Rule 9, Warrant or Summons Upon Indictment or Information. Judge Muggli, as author of the Rule, noted that the Rule was essentially the same as previously adopted by the Committee, with a change in paragraph (a) Issuance, adding the provision for "showing of probable cause as required in Rule 4", as suggested by the latest draft of Proposed Amendments to the Federal Rules of Criminal Procedure.
Mr. Graham made reference to the Preliminary Draft of Proposed Amendments to the Federal Rules, January 1970, on page 25, the Advisory Committee note, which states;
"Subdivision (a) is also amended to make explicit the fact that a warrant or summons can issue upon the basis of any information only if the information, or an affidavit filed with the information, shows probable cause for the arrest warrant or summons. This is current law, though the requirement is not reflected in the rule itself. See C. Wright, Federal Practice and Procedure: Criminal §151 (1969); 8 Moore's Federal Practice ¶9.02 (2d ed. Cipes 1969). The indictment is, in itself, sufficient to establish the existence of probable cause. See C. Wright, Federal Practice and Procedure: Criminal § 151 (1969); 8 Moore's Federal Practice ¶9.02  at p. 9-4 (2d ed. Cipes 1969); Giordenello v. United States, 357 U.S. 480 (1958). The language making reference to any information supported by 'oath' is dropped as unnecessary. The important requirement is that there be a showing of 'probable cause.'"
There was some discussion raised on the language in subsection (a), "The clerk shall issue a summons instead of a warrant...", and on that basis, the question was further raised as to whether the clerk could make a determination of probable cause. Probable cause finding is necessary for the issuance of a warrant. Judge Erickstad suggested that the finding of probable cause must be made by the court notwithstanding that the clerk issues the document.
Judge Pearce MOVED to have the second sentence of Rule 9(a) Issuance be amended to read, "The court shall issue a summons...", instead of "The clerk shall issue...". Motion was seconded by Robert Vogel. There was additional discussion. Judge Pearce WITHDREW his motion.
John Graham made a SUBSTITUTE MOTION, as follows:
1) To delete the second sentence in 9(a), beginning "The clerk shall issue...", and to insert in lieu thereof, "The court may after a showing of probable cause issue a summons instead of a warrant upon its own motion or at the request of the prosecuting attorney.";
2) In the next sentence, to strike the words "or direction he" and to add the words "or on its own motion, the court"; and
3) In the following sentence, to strike the words "He shall deliver..." and after "[T]he warrant or summons...", to include the words "shall be delivered...".
Second by Judge Pearce.
Judge Muggli noted that it was his preference to leave the rule as was originally drafted.
Mr. Sand offered a SUBSTITUTE MOTION to Mr. Graham's motion, as follows:
After the word "arrest" in the second line of Rule 9(a), the words "or summons" be inserted; and
After the word "warrant" in line 6, insert "or summons"; and
In line 8, substitute the word "court" for the word "clerk"; and
In line 10, substitute the word "it" for the word "he".
Mr. Sand then WITHDREW his motion, noting that the language could be improved and suggesting that the language provided an inconsistency.
Question was called on Mr. Graham's motion. Vote was taken and the motion FAILED.
Judge Muggli suggested that the three members who had proposed varying language for the Rule draft that language for the Committee's consideration. He noted that the reason he felt the motion failed was that the Committee was not aware of the exact language proposed. The Committee recessed to allow time for those members to submit their drafts.
The Committee reconvened; three proposals were presented.
Mr. Graham's proposal:
Rule 9. Warrant or Summons upon Indictment or Information.
Upon the request of the prosecuting attorney the court shall issue a warrant of arrest for each defendant named in the information, if it is supported by a showing of probable cause as required in Rule 4, or in the indictment, except that a warrant need not be issued for any defendant who has been held to answer for any offense charged. The court, after a showing of probable cause, shall issue a summons instead of a warrant upon its own motion or at the request of the prosecuting attorney. Upon like request or on its own motion, the court shall issue more than one warrant or summons for the same defendant. The warrant or summons shall be delivered to the sheriff or other person authorized by law to execute or serve it. If the defendant fails to appear in response to a summons, a warrant shall issue.
Mr. Vogel's proposal:
Upon the request of the prosecuting attorney the court shall issue a warrant of arrest or a summons for each defendant named in the information, or if it is supported by a showing of probable cause as required in Rule 4, or in the indictment, except that a warrant or summons need not be issued for any defendant who has been held to answer for any offense charged. The court may likewise issue a summons on its own motion. It may likewise, on its own motion or on such request issue more than one warrant or summons
for the same defendant. The warrant or summons shall be delivered to the sheriff or other person authorized by law to execute or serve it. If the defendant fails to appear in response to a summons, a warrant shall issue.
Mr. Sand's proposal:
Rule 9. Warrant or Summons Upon Indictment or Information.
Upon the request of the prosecuting attorney or at the direction of the court, a warrant of arrest or a summons shall be issued for each defendant named in the information, if it is supported by a showing of probable cause as required in Rule 4, or in the indictment, except that a warrant need not be issued for any defendant who has been held to answer for any offense charged. Upon request of the prosecuting attorney or direction of the court, more than one warrant or summons shall be issued for the same defendant. The warrant or summons shall be directed to the sheriff or other person authorized by law to execute or serve it. If the defendant fails to appear in response to a summons, a warrant shall issue.
Acting Chairman Murray allowed each drafter to present the advantages of his proposal. Mr. Vogel suggested that they are all so similar in language that each of them would be acceptable.
Judge Erickstad suggested his favor toward John Graham's proposal since it was the closest to the language of the Federal Rules.
Judge Erickstad then MOVED to reconsider the action by which the Committee adopted Rule 9. Seconded by Judge Smith and CARRIED unanimously.
MOTION was made to adopt the Graham proposal. It was seconded. Vote was called; the motion CARRIED.
It was noted prior to final adoption of Rule 9 that the language in subdivision (a) made reference to Rule 4, and it was suggested that the reference should be to Rule 4(a). Paul Sand made a MOTION to that effect, that is, to further amend Rule 9(a), line 3, to read "Rule 4(a)". Motion was seconded by Judge Muggli. CARRIED unanimously.
Judge Muggli MOVED the re-adoption of Rule 9 as amended. Seconded by Mr. Vogel. CARRIED unanimously.
Explanatory Note--Rule 9.
The Committee next undertook consideration of the Explanatory Note to Rule 9. Considered first were the Statutes Affected.
Section 29-09-07 (Procedure when no information filed.) was listed as Superseded. It was noted by Mr. Graham that 29-09-07 and 29-09-06 (State's attorney must inquire into charges.) were retained as Considered under Rule 7 following much discussion. There was some discussion regarding procedure in cases when no information is filed.
John Graham MOVED to delete reference to Section 29-09-07 under Rule 9. Motion seconded by Judge Muggli. CARRIED unanimously.
29-12-01 Section 29-12-01 (Presence enforced by direction of court.) was listed as superseded. It was noted that it was also superseded by Rule 10. Paul Sand MOVED to eliminate reference to Section 29-12-01 from the Explanatory Note of Rule 9. Motion was seconded by Mr. Vogel. The motion CARRIED, with John Graham voting against.
Judge Smith MOVED to have Section 29-12-01 listed as Superseded under Rule 5, and Sections 29-12-02, 29-12-03, and 29-12-04 listed as Superseded under Rule 4.
John Shaft suggested that none of the mentioned sections should be superseded under arrest warrant and Rule 4 deals with arrest warrant upon complaint.
Paul Sand noted that 29-12-01 pertains to arraignment and was already superseded under Rule 10.
Judge Smith WITHDREW his entire motion.
29-12-02 Section 29-12-02 (Warrant of arrest.) was not listed in the Explanatory Note for Rule 9.
John Graham MOVED that Section 29-12-02 be superseded under Rule 4. Seconded by Judge Smith. Vote was called and the motion CARRIED, with one dissenting vote.
29-12-03 no objection
29-12-04 no objection
29-12-06 no objection
29-12-08 no objection
Judge Erickstad questioned the disposition of Section 29-12-07, which was not listed in the Explanatory Note; however, it was noted that 29-12-07 (Arrest upon bench warrant offense not bailable.) was not applicable to Rule 9.
Sections 40-18-07 (Warrants of arrest issued by municipal judge--Service of warrant.) and 40-18-08 (Warrants issued by municipal judge to run to whom.) were listed as Superseded. Judge Pearce noted that they are superseded by Rule 4, Warrant or Summons upon Complaint.
Judge Muggli MOVED to delete Sections 40-18-07 and 40-18-08 from the statutes superseded under Rule 9. The motion was seconded and CARRIED unanimously.
The RECORD notes that John Graham left the meeting at this time (5:10 p.m.).
John Shaft suggested amending the text of the Explanatory Note, as follow:
strike the second sentence of paragraph 1, which reads, "Subdivision (a) provides for issuance of a warrant or summons only upon request of the prosecuting attorney"; and eliminate the first seven words of the third sentence, which read, "It should be noted, however, that the" and begin the sentence with the article "A".
Bob Vogel suggested that the third sentence in paragraph 2, referring to the signature of the indictment or information by the clerk and to the In re Markel case, be deleted. However, it was noted that the sentence refers to form and states only that the warrant must be signed by the clerk, not issued by the same.
Mr. Vogel also questioned the meaning of the second sentence of paragraph 3, which states, "No provision is made under the North Dakota Rule for service of a summons upon a corporation." It was decided that that sentence should be stricken, along with the following sentence, which states, "Provision for service of summons in a civil action is found in Rule 4(d)(4), N.D.R.Civ.P."
Mr. Vogel MOVED to adopt the Explanatory Note as corrected. This was seconded by Judge Muggli and the motion CARRIED by unanimous vote.
Judge Erickstad questioned the reference line under the Statutes Superseded to note Section 29-09-07. It was noted by Mr. Travis that the statute should correctly read Section 29-09-02 and that this note was included at the request of Judge Muggli, who felt that subsection 2 exemplified a situation where an information can be filed during a term without a preliminary hearing; the basis for the Rule. Since this statute provides that an information can be filed during a term of court, it is the substance of the rule.
Since the reference read 29-09-07, Judge Muggli MOVED to delete the reference to "Note: 29-09-07 (Prosecution on information--cases.)." Motion was seconded by Paul Sand and CARRIED by unanimous vote.
Judge Smith MOVED to amend the cross reference to read, "Rule 4, Arrest Warrant or Summons Upon Complaint" and to include reference to "NDCC, Section 29-09-02 (Prosecution on information--In what cases.)". Motion was seconded by Judge Pearce. CARRIED by unanimous vote.
Judge Muggli made the following comments regarding Rule 9 for the record. "This Rule is a limited one insofar as a warrant of arrest or summons is concerned and that limitation has to do with warrants and summonses issued upon indictments or informations. Generally speaking, most warrants of arrest or summonses will be issued on the regular prosecution basis whereby a complaint has been filed and preliminary hearing had and then it's reached in district court. However, under Section 29-09-02(2), an information can be filed during a term of court apparently without a preliminary hearing. This Rule 9 is intended to cover such a situation insofar as an information is concerned. It also is intended to cover all situations where indictments have been returned and warrants and summonses issued thereon."
Mr. Sand MOVED to have the remarks of Judge Muggli regarding the purpose of Rule 9 placed in the Explanatory Note. Motion was seconded and CARRIED by unanimous vote.
Judge Muggli noted that his comments may have to be edited or corrected grammatically.
The meeting was RECESSED; scheduled to reconvene at 9:00 a.m. the following morning.
Saturday, March 25
Hon. Ralph J. Erickstad, Chairman
Hon. Gerald G. Glaser
Mr. John A. Graham
Hon. William S. Murray
Hon. Harry J. Pearce
Mr. Paul M. Sand
Mr. John G. Shaft
Hon. Kirk Smith
Mr. Robert L. Vogel
Hon. Eugene A. Burdick
Hon. Roy A. Ilvedson
Hon. James Morris
Hon. Norbert J. Muggli
Mr. Roger Persinger
Mr. Charles M. Travis, Criminal Code Reviser
Mr. Joseph H. Louwagie, Assistant Code Reviser
Miss Donna Fischer, Secretary
The meeting was called to order at 9:10 a.m. with John Shaft as Acting Chairman. The first matter for consideration was Rule 10.
Judge Murray read Rule 10, Arraignment, as follows;
"Arraignment shall be conducted in open court and shall consist of reading the indictment, information, or complaint to the defendant or stating to him the substance of the charge and calling on him to plead thereto. He shall be given a copy of the indictment, information, or complaint before he is called upon to plead."
John Graham MOVED to confirm the previous adoption of Rule 10. Seconded by Judge Murray. Question was called on the motion. Motion PASSED by unanimous vote.
Judge Erickstad strongly suggested that the Rule as printed in final form contain the name of the responsible committee member.
EXPLANATORY NOTE--Rule 10
It was noted under the Explanatory Note to Rule 10, that there were style changes and spelling errors to be corrected. In the first paragraph, Mr. Travis suggested changing the last five words of the first paragraph, "with the indictment and information", to read "as a charging document". Next change came in paragraph 3, in which it was suggested that the first sentence be changed to read "The first sentence of Rule 10 is a restatement of existing practice," and eliminate the word "But" in the second sentence and begin with "The requirement..."
Judge Erickstad noted that reference is made to a U.S. Supreme Court case for which no cite was given. It was noted that the cite for that case is Garland v. State of Washington, 232 U.S. 642, 34 S.Ct. 456, 58 L.Ed. 772.
It was noted that the second sentence in the third paragraph, "the requirement of Rule 10 that the defendant must be given a copy of the indictment or information is new", is not a correct statement because such has been practice in North Dakota for some time [Section 29-11-56 (Copy of indictment or information to be furnished defendant.)]. On that basis, it was suggested that the language be stricken.
Judge Murray MOVED to have the last paragraph of the Explanatory Note to Rule 10 stricken as unnecessary. Seconded by Paul Sand; the motion CARRIED with no dissenting votes.
John Graham noted that use of the word "Retained" has been replaced by "Considered"; and Mr. Travis added that Section 33-12-15 should be added to Statutes Superseded.
Mr. Graham suggested that the words "(as adopted)" in the second paragraph, line 9, be eliminated as confusing. The Committee agreed, and the words "(as adopted)" were deleted.
Judge Murray then MOVED the adoption of the text of the Explanatory Note, with the above changes. Mr. Graham suggested that final approval of the Explanatory Note be delayed until consideration has been given to Statutes Affected, since changes in the Statutes Affected may affect language of the Explanatory Note. He felt it would be more desirable to adopt the entire Explanatory Note.
Judge Murray WITHDREW his motion.
Judge Erickstad suggested the staff double-check the cites for Barron and the other source material. Judge Smith agreed, and it was the desire of the Committee that the staff be responsible for Source citations.
Acting Chairman Shaft then drew the Committee's attention to the Statutes Affected, taking up first Statutes Superseded.
29-11-56 Judge Murray noted that the provision for Section 29-11-56 (Copy of indictment or information to be furnished defendant.) originates in the Session Laws of 1939, Chapter 132, Section 46 (introduced by Representative A.R. Bergesen, Fargo, as House Bill 301). He noted that this material is covered by the Rule-not that there is disagreement.
RECONSIDERATION OF RULE 10
Judge Smith MOVED to reconsider the action by which the Committee approved Rule 10. Judge Smith indicated his reason for this was to add language in the last line, after the word "complaint", and to substitute the word "required" for "called upon". Motion was seconded by Judge Murray. Motion CARRIED unanimously.
Judge Smith MOVED to amend the last sentence of Rule 10, as follows:
"He shall be given a copy of the indictment, information, or complaint at least twenty-four hours before he is (((
called upon))) required to plead."
There was considerable discussion; Judge Smith noted that the language he proposed would not preclude an accused from pleading immediately.
The MOTION was expanded to include the following sentence:
"A failure to furnish such copy shall not affect the validity of any subsequent proceeding against the defendant if he pleads to the indictment or information."
Motion seconded by Judge Erickstad.
Judge Glaser noted that that provision served merely as an indication of what happens in the event the Rule is not complied with.
Judge Erickstad pointed out that cases cited are not all uniform on the question of when the trial starts and where the pleading ends--his intention was to establish a Rule that is definite.
Judge Murray made reference to a 1914 U.S. Supreme Court case, Garland v. State of Washington, 232 U.S. 642.
Acting Chairman Shaft called for a vote on the motion. The vote showed three in favor, five opposed. The motion FAILED.
John Graham MOVED to re-adopt Rule 10. Seconded by Paul Sand. The motion CARRIED by unanimous vote.
The Committee returned to consideration of Section 29-11-56. Acting Chairman Shaft noted that Section 29-11-56 (Names of witnesses to be endorsed on indictment or information.) was not listed; however, the entire Chapter 29-11 is superseded by previous action.
29-12-01 no objection
29-13-02 Section 29-13-02 (Defendant must be present if offense felony--Counsel may appear on misdemeanor.) was listed as superseded.
John Shaft commented that the defendant under this provision does not have to enter a plea of not guilty. This is a good feature, in his opinion.
Robert Vogel noted that under the Federal system, the defendant must be present for arraignment but may voluntarily absent himself thereafter during trial.
John Graham MOVED to delete reference to Section 29-13-02 from consideration under Rule 10 and to supersede it under Rule 11. Motion was seconded by Judge Murray and the motion CARRIED by unanimous vote.
29-13-03 Section 29-13-03 (Arraignment, right to have counsel.) was listed as Considered. Mr. Sand and Judge Glaser noted that the subject is covered under another statute. It was noted that Rule 44, Right to and Assignment of Counsel, was akin to this subsection, and Mr. Travis was asked to read Rule 44.
Discussion centered around the question of the right to assignment of counsel relative to the stage in the proceedings and degree of the crime.
The Committee RECESSED for coffee; RECONVENED to continue consideration of Statutes Affected, Section 29-13-03.
Graham MOVED to reconsider the previous action by which the Committee approved adoption of Rule 10. Seconded by Judge Glasser. Vote showed the motion CARRIED.
Mr. Graham noted that his intent in opening the proceedings was to supersede Section 29-13-03, but to do so would require the inclusion of language from 29-13-03 in the Rule.
Mr. Graham MOVED to add at the end of the Rule language, "If the defendant appears at the arraignment without counsel, he shall be informed of his right to counsel as provided in Rule 44." Motion was seconded by Judge Glaser.
Mr. Sand noted that Barron, Holtzoff, nor the Federal Rules made reference to counsel in the explanation of the rules. No further discussion; the motion CARRIED by unanimous vote.
John Graham then MOVED to have Section 29-13-03 superseded. Seconded by Judge Smith. The motion PASSED by unanimous vote.
29-13-05 no objection
29-13-06 no objection
Judge Smith suggested including in the Explanatory Note to Rule 10 language to the effect that, "The superseding of this statute is not intended to revive technical objections as existed prior to the enactment of Section 29-11-36 in 1939.
John Graham went on to suggest that such technical objection shall be considered harmless error under Rule 52.
Robert Vogel noted that the Committee had voted to reconsider Rule 10 and then had voted down an amendment. Question where procedurally this left the Committtee.
John Graham MOVED the confirmation of the adoption of Rule 10 as previously adopted. Seconded by Judge Murray. Motion CARRIED unanimously.
29-13-04 The Committee considered Section 29-13-04 (How arraignment made.), was listed as Superseded.
Paul Sand noted that under 29-13-04, the arraignment may be made by court or the clerk or state's attorney under the clerk's direction, that the Rule makes no provision for this. Rather, the Rule implies that the arraignment will be made before the court.
Judge Smith suggested an interpretation of the word "under" in the statute in relation to the direction of the court requires that the process be had in the presence of the court rather than through its direction, which case the word would be "by" its direction.
There were no objections, however, to the statute and it is superseded.
Superseded: 29-13-07 no objection
29-13-08 Section 29-13-08 (Time to answer given defendant--Discretion of court.) was listed as Superseded.
Judge Smith noted that he had intended to include language which would include this statute in the Explanatory Note. For now, he MOVED to have the asterisk removed. Seconded by Judge Murray. Vote was taken; the motion CARRIED.
29-13-09 Section 29-13-09 (Failure to arraign and irregularity of arraignment.) was listed as Superseded. There was no objection.
33-12-15 no objection
Judge Smith then suggested an additional paragraph, to be paragraph three of the Explanatory Note, as follows:
"Supersession of Sections 29-11-56, 29-13-09, and 33-12-15 by this Rule and the entire Chapter 29-11 by Rule 7 is not intended to revive technical objections to criminal proceedings which were available to defendants on appeal prior to the enactment of Chapter 132, North Dakota Session Laws, 1939, Chapter 29-11, NDCC. Technical objections of this sort are to be treated as harmless error under Rule 52."
Judge Smith noted that the reason he used a reference to the 1939 Session Laws and cited the Code ? this note with the 56 sessions involved. Judge Smith MOVED the adoption of the language to be included in the Explanatory Note as he had dictated, with the exception of substituting the words "The superseding" for the first word, "Supersession", to be included as paragraph 3.
To be included in the motion is approval of the Explanatory Note to Rule 10.
Motion was seconded by John Graham. Motion CARRIED unanimously.
It was decided by the Committee that they would look at Rule 11, familiarize themselves, to better prepare for the next meeting. Upon review of Rule 11, it was noted that certain style changes were included pursuant to recommendations by Judge Burdick that were not acceptable to the Committee, and it was MOVED by Judge Smith that the original language of the Rule as adopted by the Committee, with the exception of substitution of the phrase "prosecuting attorney" for "attorney for the government" be presented for consideration at the next meeting.
Reference was made to the case Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427, 92 S.Ct. 495, 40 Law Week 4076, at pages 498-499(1971).
Mr. Sand MOVED that Rule 11 be re-drafted, in accordance with the changes of Judge Smith, in the legislative style, for presentation at the next meeting.
Seconded by Judge Murray. Motion CARRIED unanimously.
Judge Smith MOVED for adjournment. Second; CARRIED.
Next scheduled meeting date: May 11-12-13, 1972
Charles M. Travis
Criminal Code Reviser
Donna M. Fischer
ERRATA SHEET: Minutes of Rules Committee meeting of January 27-28-29, 1972
1) On page 2, ¶10, line 2, the reference should be to Sections 27-02-08 and 27-02-10, NDCC.
2) On page 3 of the Minutes, third paragraph from the bottom of the page, beginning "Judge Muggli suggested...", in line 2, the reference to the Code should read Section 27-02-10 and 27-02-09.
3) On page 4, the paragraph beginning "It was suggested that...", in line 3, the reference again should be to Section 27-02-10.
4) On page 7b of the Minutes, the following typing corrections are noted;
Under "Explanatory Note--Rule 4", the line beginning "to perceive", two letters were transposed in the word "perceive".
In the sentence following that, beginning "Subdivision (a)...", a typing error is noted in the word "Subdivision".
In the note following that sentence, beginning "See the American Law Institute...", the word "Institute" contains a typing error.
5) On page 7d of the Minutes, in ¶l, line 7, which begins "which provide that...", the word "summonee" contains a typing error.
Also on page 7d, in the third paragraph, line 21 beginning "keeping with Chapter 29-05-08", the word "Chapter" should be changed to read "Section".
6) On page 9, the paragraph beginning "Judge Erickstad suggested...", the
reference to Giordenello is misspelled.
7) On page 17 of the Minutes, under Rule 5(a) General, line 7, two letters are transposed in the word "magistrate".
8) In Appendix A, Rule 3 the following corrections or additions are noted;
Under "Sources:", in the last line, the reference "(see Bluebook, p. 97)" should be deleted and the date "January 27, 1971" should be inserted.
On the same page, ¶3 of the Explanatory Note, in the last line, the case reference to Giordenello is misspelled.
Also, on the same page, in the footnote, the spelling of Giordenello should again be corrected, and the date reference should be noted as "1958".
9) In Appendix A, Rule 4, on page 3, line 8 of the second paragraph, in the sentence beginning "However, as a practical matter...", the letter "c" should be inserted in the word "practical".
10) In Appendix A, Rule 5, under (b)(1)(v), in the last line, the letter "d" should be inserted in the word "hardship".
11) In Appendix A, Rule 5.1, paragraph (c) Record, in line 7, two letters are transposed in the word "magistrate".
12) In Appendix B, ¶3, line 2, two letters are transposed in the word "cause".
The following Sections of the NDCC are additions to the Explanatory Notes according to the work of the staff and J. Pearce, Committee member, as per direction of the Committee in January to review Titles 33 and 40.
RULE 3: Statutes Superseded: 33-12-25.
RULE 4: Statutes Superseded:
33-12-06, 33-12-07, 33-12-08,
Statutes Considered: 40-18-01.
The following corrections are noted in Rules 7-20, as proposed showing changes.
1) In Rule 7, page 1, under "(e) Amendment of Information", the first word of line 2 should be corrected to read "or finding...".
2) It is noted that Rule 12 is republished.