Joint Procedure Committee Meeting
Scheduled on Thursday, May 15, 1969 @ 10:15 AM
MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
for the Adoption of Rules of Criminal Procedure
May 15, 1969
The Joint Committee of the Judicial Council and the State Bar Association for the Adoption of Rules of Criminal Procedure met on May 15, 1969, in the hearing room of the Supreme Court at 9:15 a.m.
The following members were present:
Supreme Court Judge Ralph Erickstad, Chairman;
District Judge Eugene A. Burdick;
District Judge Roy A. Ilvedson;
District Judge Norbert J. Muggli;
First Assistant Attorney General Paul M. Sand;
Mr. Gerald G. Glaser,
Mr. John Shaft.
Absent were:
Retired Supreme Court Judge James Morris;
Former Supreme Court Judge William S. Murray;
County Judge Kirk Smith;
Mr. Roger Persinger;
Mr. Robert L. Vogel.
Also present were
Mr. David Peterson, law clerk, and
Mrs. Rebecca Quanrud, secretary.
The chairman welcomed the members present. He then called attention to a number of typographical errors in the minutes of the previous meeting. Mr. Glaser moved that the minutes be approved, with the corrections noted. Mr. Sand seconded the motion. The motion carried.
Mr. Shaft moved that the parenthetical numbers (1) and (2) be deleted from Rule 32(c)(2) as adopted at the previous meeting.
Judge Burdick made the substitute motion that in the second sentence of Rule 32(c)(2) the words The court at the beginning of the sentence be deleted and that the sentence begin Before imposing sentence the court may and continue with the sentence, deleting the parenthetical numerals. Judge Muggli seconded the motion. The motion carried. Rule 32(c)(2) as adopted reads:
Rule 32. Sentence and Judgment.
(c) Presentence Investigation.
(2) Report. The report of the presentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court. Before imposing sentence, the court may disclose to the defendant or his counsel all or part of the material contained in the report of the presentence investigation and afford an opportunity to the defendant or his counsel to comment thereon. Any material disclosed to the defendant or his counsel shall be also disclosed to the attorney for the prosecution.
The chairman called upon Judge Ilvedson for a report on his investigation of depositions as used in criminal cases in California. Judge Ilvedson reported that after reading Judge Traynor's pamphlet (Ground Lost and Found in Criminal Discovery, 39 N.Y.U. L. Rev. 228 - Apr. 1968) he feels that changes will be necessary if North Dakota is to keep up with the times. He said that he wanted more time for further study.
The chairman called upon Judge Burdick for a report on his study of special verdicts. Judge Burdick said that he feels now that North Dakota should have a general verdict with special interrogatories. He said he is thinking especially of cases involving embezzlement and other cases involving accounting and the handling of funds. He said he would like further time to make his report.
The chairman referred the committee to item 5 of the agenda, inquiring if anyone wished to question the wisdom of permitting a revocation of probation of suspended sentence or deferred sentence only after a hearing at which defendant must be present--what happens when defendant hides so that he cannot be found? He referred them to the present wording of Rule 32(f) [See p. 14 of the minutes of Feb. 20-21.].
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Judge Burdick said that if the defendant fails to appear, the court may issue a bench warrant to compel his appearance. Mr. Glaser asked what is the sense in invoking probation if the defendant is not around? Judge Burdick said that he thinks the defendant is entitled to a hearing, and no warrant should be issued unless he is already under arrest. If he fails to come in voluntarily, then the judge can issue a warrant. Judge Ilvedson said, what if he runs? He said that the present law does give authority to any peace officer to pick up a person if he is in violation.
The chairman asked if Judge Ilvedson would consider studying this question and bringing in a recommendation. This Judge Ilvedson agreed to do. Mr. Glaser said that in reading the Code, he thinks our present use of bench warrants is wrong; he mentioned a warrant of attachment of the body.
The chairman called on Mr. Sand, who read his draft of Rule 37(a) (2) as follows:
Rule 37. Taking Appeals.
(a) Appeals to the Supreme Court from District Court and County Court of Increased Jurisdiction.
(2) Time for Taking Appeal. An appeal from a judgment or order in the district court or county court of increased jurisdiction shall be taken within thirty days after rendition of the judgment or the making of the order, except that if a timely motion for a new trial or in arrest of judgment has been made within the thirty-day period, an appeal from a judgment of conviction may be taken within thirty days after the order denying the motion.
There followed a discussion of the problems relating to arrest of judgment. Mr. Glaser read § 29-25-01, "Motion in Arrest of Judgment" Defined.
Judge Erickstad inquired if there would be any objection to deleting the words in arrest of judgment from Rule 37(a)(2). Discussion followed. Mr. Sand noted that Federal Rule 37 has been superseded because the federal government has developed appellate procedural rules, but that he feels that until North Dakota develops appellate procedural rules, it needs Rule 37. He said the corresponding rule in the federal appellate procedural rules is quite similar to his draft of Rule 37. He commented that the words or in arrest of judgmentcould be deleted, but motion for new trial was put in deliberately, and that was to get away from the defendant's having to watch two dates of appeal.
Mr. Glaser moved that the words or in arrest of judgment be deleted from the draft of Rule 37(a)(2). Mr. Sand seconded the motion. The motion carried.
Mr. Glaser commented that Mr. Sand's mention of two times for appeal is another thing that is bothering him. There followed a discussion of the time for appeal.
The chairman commented that he believed the committee should go ahead and tentatively adopt a rule on this subject, so that the committee would have something to work from, but that it may possibly be changed later.
Judge Burdick read §§ 29-28-06, From what defendant may appeal, and 29-28-07, From what the State may appeal.
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Mr. Sand said that his thinking, in developing Rule 37, was that what may be appealed is a matter that should be covered by statute, but that procedure to be followed in making an appeal is properly governed by a rule.
The chairman noted that Rule 37(a)(2) refers to an appeal from a judgment or an order. He then read again § 29-28-06, From what defendant may appeal.
Judge Burdick stated that the rule should say appeal from a judgment of conviction and not just judgment. Discussion followed.
The chairman noted that the minutes should contain reference to §§ 29-28-06 and 29-28-07, previously referred to, with the notation that these statutes should be retained without reference in the rules.
There followed a discussion of what orders are appealable.
Judge Burdick moved that the draft of Rule 37(a)(2) be amended in the following manner: After the word judgment where it first appears, insert the words of conviction, and after the word or where it first appears, insert the words an appealable, so that the beginning of the sentence reads "An appeal from a judgment of conviction or an appealable order in the district court, etc." Judge Ilvedson seconded the motion. The question being on Judge Burdick's motion, Judge Burdick, Mr. Glaser, Mr. Shaft, Judge Ilvedson, and Judge Smith voted aye; Judge Muggli and Mr. Sand voted nay. The motion carried.
There followed a general discussion of uniformity of wording in the rules.
Judge Burdick questioned a difference in wording between Rule 37(a)(2) and 37(b)(2). The chairman asked Mr. Sand to comment. Mr. Sand said that the difference lay in the fact that in municipal court or justice court or county court without increased jurisdiction, he believes, there are no procedural motions in motion for new trial or for arrest of judgment. If you appeal from them, you appeal directly to the county court with increased jurisdiction or to the district court. He mentioned counties which do not have county justice courts or county courts without increased jurisdiction. Judge Smith asked if there are any such counties still in existence. Mr. Sand said that until recently Logan County was such a county, but he was not aware of any such counties now.
The chairman asked if anyone wished to move that Rule 37(a)(2) as amended be adopted. Mr. Sand so moved.
There followed a discussion of the differing procedures between an appeal from a justice court or county court without increased jurisdiction to the county court with increased jurisdiction or district court and that of an appeal from a district court or county court wit increased jurisdiction to the Supreme Court.
Judge Burdick moved that the words to the supreme court be inserted after the word appeal.
Mr. Glaser asked if there was anything wrong with having just one section on the time for taking appeal.
Mr. Sand commented that he had previously composed one rule which would cover all situations and that it was then the consensus of the committee that the rule should be split into separate parts to cover two different types of court.
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Mr. Glaser seconded Judge Burdick's motion. The question being on Judge Burdick's motion, the motion carried.
Judge Burdick moved the adoption of Rule 37(a)(2) as amended. Judge Smith seconded the motion. The motion carried.
Mr. Sand read his draft of Rule 37(b)(1) as follows:
Rule 37. Taking Appeals.
(b) Appeals to District Court or County Court of Increased Jurisdiction from County Justice Court, Municipal Court or County Court Without Increased Jurisdiction.
(1) How an Appeal is Taken; Notice of Appeal. An appeal permitted by law shall be taken within the time specified in Paragraph 2 of this subdivision by serving a copy of a notice of appeal upon the attorney for the adverse party, (or upon the adverse party if no attorney appeared of record for the adverse party), and filing the notice with proof of service with the court from which the appeal is taken. In counties having a county court of increased jurisdiction the appeal should be taken to such court. The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken. Within five days after an appeal has been filed the court shall transmit to the clerk of the district court a certified copy of its docket and all papers relating to the case as on appeal in a civil action without any charge to the appellant.
Mr. Sand moved the adoption of Rule 37(b)(1) as read. Judge Smith seconded the motion.
Judge Burdick objected to the wording of the headings of certain subsections of Rule 37, stating that they were not part of the rule but simply headings. Mr. Sand noted that there is a difference between the titles of statutes and those of rules, in that the titles of statutes are composed by persons other those who adopt the statutes, but in the case of rules, the titles are written by the composers of the rules.
Judge Muggli moved that the action by which the committee had adopted Rule 37(a)(1) be reconsidered, and that the words to the Supreme Court be inserted after the word appeal in the first sentence. Mr. Glaser seconded the motion. The motion carried.
Mr. Glaser moved that Rule 37(a)(1) as amended be adopted. Judge Muggli seconded the motion. The motion carried.
Judge Burdick noted that the draft of the Commissioners on Uniform State Laws contains a very short and simple rule on appeals, their No. 46.
Mr. Sand again explained that he had purposely divided the rule into two parts in order to provide for appeals to county courts of increased jurisdiction and district courts as well as to the Supreme Court.
Judge Burdick moved that Rule 37(b)(1) be amended by inserting the following words after the word appeal where it first appears in the first sentence: to district court or county court of increased jurisdiction. Mr. Sand seconded the motion. The motion carried.
Mr. Sand read a part of § 27-07-02, Jurisdiction of county courts:
". . . In a county not having a county court of increased jurisdiction, the jurisdiction and powers formerly vested in the justices of the peace are hereby conferred concurrently upon the county court, unless and until a county justice is appointed."
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There followed a discussion of appeals to the district court from county court.
Judge Smith read § 103 of the state constitution, District Courts: "The district courts shall have original jurisdiction, except as otherwise provided in this constitution, of all causes both at law and equity, and such appellate jurisdiction as may be conferred by law. They and the judges thereof shall also have jurisdiction and power to issue writs of habeas corpus, quo warranto, certiorari, injunction, and other original and remedial writs, with authority to hear and determine the same."
Judge Smith then read § 111, County Courts: "The county courts shall have exclusive original jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of accounts of executors, administrators and guardians, the sale of lands by executors, administrators and guardians, and such other probate jurisdiction as may be conferred by law; provided that whenever the voters of any county having a population of 2,000 or over shall decide by majority vote that they desire the jurisdiction of said court increased above that limited by this constitution, then said county court shall have concurrent jurisdiction with the district courts in all civil actions where the amount in controversy does exceed one thousand dollars, and in all criminal actions below the grate of felony, in case it is decided by the voters of any county to so increase the jurisdiction of said county court, the jurisdiction in cases of misdemeanors arising under state laws which may have been conferred upon police magistrates shall cease. The qualifications of the judge of county court in counties where the jurisdiction of said court shall have been increased shall be the same as those of the district judge, except that he shall be a resident of the county at the time of his election, and said county judge shall receive such salary for his services as may be provided by law. In case the voters of any county decide to increase the jurisdiction of said county courts, then such jurisdiction as thus increased shall remain until otherwise provided by law."
Mr. Sand read the opening sentence of S.B. 118 of the 41st Legislative Assembly (1969) as follows: "County courts having increased jurisdiction shall have concurrent jurisdiction with the district courts in appeals from all final judgments of conviction of municipal judges, and the proceedings on such appeals shall be the same as those which now are or hereafter may be provided for appeals from judgment of county justices to district courts." Mr. Sand remarked that the change merely clarified the law.
Mr. Peterson read the amendments to S.B. 118 as found on page 233 of the Senate Journal. These amendments caused the sentence to read: "County courts having increased jurisdiction shall have concurrent jurisdiction with the district courts in appeals from all final judgments entered in municipal courts, and the proceedings on such appeals shall be the same as those which now are or hereafter may be provided for appeals from judgments of county justices to district courts."
Judge Burdick commented that the idea in introducing this legislation, which was promoted by the Judicial Council, was to limit it to judgments of conviction, but that somebody persuaded the legislature to take the words of conviction out.
Mr. Peterson read § 2 of the bill, which amended N.D.C.C. § 40-18-19, Appeals from determinations of municipal judge, and which reads:
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"An appeal may be taken to the district court or to the county court of increased jurisdiction as provided for in section 27-08-21 from(((any))) a judgment of conviction in a municipal judge's court in the same form and manner as appeals are taken and perfected from a judgment of conviction of a defendant in justice court, and in accordance with sections 33-12-34, 33-12-35, and 33-12-39, and shall be tried in the district county court or county court of increased jurisdiction in accordance with sections 33-12-40 and 33-12-41, and bail shall be taken in accordance with section 33-12-36 and 33-12-37, and witnesses may be placed under bond as provided for in section 33-12-38. On all appeals from a determination in a municipal judge's court the (((district))) court shall take judicial notice of all of the ordinances of the city. No filing fee shall be required for the filing of an appeal from a judgment of conviction for the violation of a municipal ordinance." [Underscored words are additions to the present statute and words enclosed in triple parentheses are deletions.]
Judge Burdick moved that the second sentence of Rule 37(b)(1) be deleted. Judge Smith seconded the motion. The motion carried, Judge Burdick, Mr. Shaft, Mr. Glaser, and Judge Smith voting aye, and Mr. Sand, Judge Muggli, and Judge Ilvedson voting nay.
Judge Burdick moved that the title of Rule 37(b) be changed to read:Appeals to District Court or County Court of Increased Jurisdiction. Mr. Sand seconded the motion. The motion carried.
Mr. Sand moved that Rule 37(b)(1) be adopted as amended. Judge Ilvedson seconded the motion. The motion carried. Rule 37(b)(1) as adopted reads:
Rule 37. Taking Appeals.
(b) Appeals to District Court or County Court of Increased Jurisdiction.
(1) How an Appeal is Taken; Notice of Appeal. An appeal to district court or county court of increased jurisdiction permitted by law shall be taken within the time specified in Paragraph 2 of this subdivision by serving a copy of a notice of appeal upon the attorney for the adverse party, (or upon the adverse party if no attorney appeared of record for the adverse party), and filing the notice with proof of service with the court from which the appeal is taken. The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken. Within five days after an appeal has been filed the court shall transmit to the clerk of the district court a certified copy of its docket and all papers relating to the case as on appeal in a civil action without any charge to the appellant.
Judge Burdick moved that the action by which the committee had adopted Rule 37(a) be reconsidered. Mr. Sand seconded the motion. The motion carried.
Judge Burdick moved that the title of Rule 37(a) be amended by deleting everything after the words Supreme Court. Mr. Sand seconded the motion. The motion carried.
Judge Burdick moved that Rule 37(a) as amended be adopted. Mr. Sand seconded the motion. The motion carried. Rule 37(a) as adopted reads:
Rule 37. Taking Appeals.
(a) Appeals to the Supreme Court.
(1) How an Appeal is Taken; Notice of Appeal. An appeal to the Supreme Court permitted by law shall be taken within the time specified in Paragraph 2 of this subdivision by serving
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a copy of a notice of appeal upon the attorney for the adverse party, (or upon the adverse party if no attorney appeared of record for the adverse party), and filing the notice, with proof of service, with the clerk of court from which the appeal is taken. The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken. The clerk of court, within ten days after the filing of the appeal, shall, without charge, certify and transmit to the clerk of the Supreme Court the notice of appeal, undertaking and certificate of probable cause, if any, and a certified copy of the judgment or order appealed from.
(2) Time for Taking Appeal. (omitted because of later amendment. See p. 9 of these minutes.)
Mr. Sand read his draft of Rule 37(b)(2) as follows:
Rule 37. Taking Appeals.
(b) Appeals to District Court or County Court of Increased Jurisdiction.
(2) Time for Taking Appeal. An appeal to the district court from the county justice court, municipal court, or county court without increased jurisdiction may be taken within thirty days after the rendition of the judgment.
Judge Burdick moved that the draft of Rule 37(b)(2) be amended to read as follows:
(2) Time for Taking Appeal. An appeal to the district court or county court of increased jurisdiction shall be taken within thirty days after the rendition of the judgment.
(QUESTION: Should not 37(b)(2) refer to an order as well as a judgment?)
Judge Muggli asked the meaning of the word rendition. Mr. Sand said he had researched it and had decided to use it on the basis of cases he has read.
Mr. Sand seconded the motion. The question being on Judge Burdick's motion to amend Rule 37(b)(2), the motion carried.
Judge Ilvedson moved that Rule 37(b)(2) as amended be adopted. Mr. Sand seconded the motion. The motion carried. (For wording of Rule 37(b)(2) as adopted, see above.]
Mr. Sand read his draft of Rule 37(b)(3) as follows:
Rule 37. Taking Appeals.
(b) Appeals to District Court or County Court of Increased Jurisdiction.
(3) Effect of an Appeal. An appeal to the district court from the county justice court, municipal court, or county court without increased jurisdiction, when perfected, transfers the action to the district court for trial anew, regardless of any ruling or decision of the justice.
Judge Smith moved to amend the draft of Rule 37(b)(3) to read:
(3) Effect of an Appeal. An appeal to tile district court or county court of increased jurisdiction, when perfected, transfers the action to the district court or county court of increased jurisdiction for trial anew.
Judge Ilvedson seconded the motion. The motion carried.
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Judge Burdick moved that Rule 37(b)(3) be adopted as amended. Mr. Shaft seconded the motion. The motion carried. (For wording of Rule 37(b)(3) as adopted see p. 7 of these minutes.]
There followed a discussion of whether the first judgment is reinstated in case of the abandonment of an appeal. Judge Muggli read § 33-12-41, Appeal not dismissed--When judgment affirmed.
Judge Burdick moved that § 33-12-41 be listed as being retained without reference in the rules but that it be referred to the list of statutes which should be revised by the legislature. Judge Muggli seconded the motion. The motion carried.
Mr. Sand read his discussion of Rule 37, as follows:
"DISCUSSION
"The language, 'permitted by law,' is placed in the rule to preserve the status of the law in this state, namely, that appeals are permitted only as provided for by law. (See State vs. Higgins, 145 N.W.2d 478.) Appeals on juvenile matters have not been included on the basis that the criminal rules previously adopted apparently do not apply to juvenile proceedings. Neither does this rule relate to the preparation of the record on appeal, settled statement of the case, etc., as such matters may be considered by other rules or by special rules for appellate procedures.
"Only the first sentence in Section 29-28-08 is superseded by this rule (No. 37). If subsequent rules will cover the remaining portion, such rules will have to take into account said remaining portion. The time of appeal has been reduced to thirty days to correspond with the concept that criminal process should be pursued without delay. The Federal Rules allow only ten days from the entry of judgment. This rule allows thirty days from the rendition of the judgment or from the making of the order. Apparently the practice in this state does not place emphasis on the entering of either a judgment or order as being significant. The statutes used similar expression.
"The following sections will be affected by this rule:
"Section 29-28-02 can be superseded because the rule states merely that an appeal may be taken as provided by law, which includes both defendant and the prosecution. The rule in its entire context embraces both defendant and prosecution. Sections 29-28-04, 29-28-11, 33-12-35 and 33-12-40 are superseded. All except the last sentence in Section 32-12-14 is superseded.
"Some of the material in Rule No. 37(b) contains the same provisions as found in Section 40-18-19 but not all of said provisions are disposed of in this rule. Because the language as found in the statute is so interrelated with the provisions contained therein, I would not recommend superseding Section 40-18-19.
"The rule as presently drafted permits appeals from justice court, municipal court and county courts without increased jurisdiction to county courts of increased jurisdiction. In this respect it should be noted that under Section 27-08-21 concurrent appellate jurisdiction is given to district courts and county courts of increased jurisdiction. However, the statutes authorizing an appeal from municipal courts or county justice courts provide that the appeal be taken to the district court. (See Sections 40-18-19 and 33-12-34.)
"I am not aware of any case law which resolves the question whether or not Section 27-08-21 is sufficient authority to permit appeals to a county court of increased jurisdiction where the statutes granting and authorizing the appeal specifically state that the appeal is to the district court. By adopting this rule we would specifically authorize an appeal to the county court of increased jurisdiction and do, in fact, recommend that the appeals be to such courts in counties where a court of increased jurisdiction exists.
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"The rule does not include an appeal from a finding of guilty as distinguished from a verdict of guilty because the statutes do not authorize an appeal from such findings. The Supreme Court has repeatedly stated that no appeal is permitted except as is authorized by statute.
"The county courts without increased jurisdiction are included in this rule because a county court without increased jurisdiction has the same authority and jurisdiction as was formerly conferred upon justices of the peace until such time as a county justice court has been created. (See Section 27-07-02 of the NDCC, which provides, in part, as follows: 'In a county not having a county court of increased jurisdiction, the jurisdiction and powers formerly vested in the justice of the peace are hereby conferred concurrently upon the county court unless and until a county justice is appointed.')
"The oral appeal provision has been deleted in the revised rule. If this rule is adopted in this manner there would be no oral appeals."
Mr. Sand moved that only the first sentence of § 29-08-08, Admission to bail before conviction, be listed as being superseded by the rule and that the rest of the statute be retained, with referral of this section to that group to be listed for legislative revision. Judge Burdick seconded the motion. The motion carried.
Mr. Sand moved that § 29-28-02, "Admission to bail" defined, be superseded. Judge Muggli seconded the motion. The motion carried.
The meeting recessed at 11:55 a.m. and reconvened at 1:40 p.m., with the same persons present.
Judge Burdick moved that the action by which the committee had adopted Rule 37(a)(2) be reconsidered for the purpose of amending the second line from the bottom to insert the words entry of after the word after. There was no second to this motion.
Judge Ilvedson moved that the action by which the committee had adopted Rule 37(a)(2) be reconsidered for the purpose of amending the second line from the bottom to insert the words the making ofafter the word after. Judge Burdick seconded the motion. The motion carried.
Judge Burdick moved to adopt Rule 37(a)(2) as amended. Judge Muggli seconded the motion. The motion carried. Rule 37(a)(2) as adopted reads:
Rule 37. Taking Appeals.
(a) Appeals to the Supreme Court.
(2) Time for Taking Appeal. An appeal to the Supreme Court from a judgment of conviction or an appealable order in the district court or county court of increased jurisdiction shall be taken within thirty days after rendition of the judgment or the making of the order, except that if a timely motion for a new trial has been made within the thirty-day period, an appeal from a judgment of conviction may be taken within thirty days after the making of the order denying the motion.
Mr. Sand read his draft of Rule 37(c)(1) and (2), as follows:
Rule 37. Taking Appeals.
(c) Appeal from Verdict of Guilty When Imposition of Sentence is Deferred or Suspended.
(1) How Taken; Notice of Appeal. An appeal from a verdict of guilty shall be taken within the time specified in Paragraph 2 of this subdivision by serving a copy of notice of appeal upon
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the attorney for the adverse party, (or upon the adverse party if no attorney appeared of record for the adverse party), and filing the notice, with proof of service, with the clerk of court or the court from which the appeal is taken. The notice of appeal shall specify the party or parties taking the appeal; shall designate the verdict from which the appeal is taken; and shall name the court to which the appeal is taken. If the appeal is taken to the North Dakota Supreme Court from a verdict of guilty in the district court or county court of increased jurisdiction, the clerk of court, within ten days after the filing of the appeal, shall, without charge, certify and transmit to the clerk of the Supreme Court the notice of appeal, undertaking and certificate of probable cause, if any, and a certified copy of the judgment or order appealed from. If the appeal is to the district court or county court of increased jurisdiction from a county justice court, municipal, or county court without increased jurisdiction, the court shall, within five days after an appeal has been filed, transmit to the clerk of the district court or the county court of increased jurisdiction a certified copy of its docket and all papers relating to the case as on appeal in a civil action without any charge to the appellant.
(2) Time for Taking Appeal. An appeal from a verdict of guilty shall be taken within thirty days from the official rendition of the verdict, except that if a timely motion for a new trial has been made within the thirty-day period, an appeal may be taken within thirty days after the order denying the motion.
Judge Muggli read § 29-28-06, From what defendant may appeal. There followed a discussion of appeals from a verdict of guilty.
The secretary was instructed to note in the minutes Judge Burdick's recommendation that Mr. Sand resubmit Rule 37(a) and (b) to include (c). Judge Burdick further suggested that appeal from the verdict be permitted only if judgment had been rendered.
Further discussion followed. The chairman suggested that since Judge Burdick is the one who has criticized this rule, he should send his suggestions to Mr. Sand to assist him in redrafting the rule.
Mr. Sand read his draft of Rule 37(d) as follows:
Rule 37. Taking Appeals.
(d) Designation of Parties on Appeal.
The party appealing shall be known as the appellant and the adverse party as the respondent, but the title of the action shall not be changed in consequence of the appeal.
Mr. Sand moved that the word respondent be changed in all cases toappellee. Judge Burdick seconded the motion. The motion carried.
Mr. Sand moved the adoption of Rule 37(d) as amended. Judge Muggli seconded the motion. The motion carried. Rule 37(d) as adopted reads:
Rule 37. Taking Appeals.
(d) Designation of Parties on Appeal. The party appealing shall be known as the appellant and the adverse party as the appellee, but the title of the action shall not be changed in consequence of the appeal.
The secretary was instructed to note in the minutes that the change from respondent to appellee in all cases is being made with the hope that it will avoid confusion, especially in special proceedings.
Judge Smith mentioned § 29-22-16, General verdicts--Contents. The chairman requested him to make a written report on this at a future meeting
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Judge Smith discussed briefly the defense of diminished responsibility and genetic aberration.
Judge Burdick cited §§ 12-02-01, Persons capable of committing crime-Ignorance of law no excuse, and 12-02-02, Ambassadors and foreign ministers exempt from punishment, as examples of cases in which the defendant is not criminally responsible.
Judge Burdick noted that it might be well to have a verdict for persons who are not responsible who commit criminal acts while they are unconscious or in involuntary subjection by superior force. These persons are already covered in the statute, but the question is, will they come under the definition of insanity?
Judge Ilvedson pointed out that he would not be able to attend the committee meeting on the 16th and requested that the committee move to Rules 43 and 44, which were his responsibility.
Judge Ilvedson read his draft of Rule 43, as follows:
Rule 43. Presence of the Defendant.
The defendant shall be present at the arraignment, at every state of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules. In prosecutions for offenses not punishable by death, the defendant's voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict. A corporation may appear by counsel for all purposes. In prosecutions for offenses punishable by fine or by imprisonment for not more than one year or both, the court, with the written consent of the defendant, may permit arraignment, plea, trial and imposition of sentence in the defendant's absence. The defendant's presence is not required at a reduction of sentence under Rule 35.
He mentioned that affected statutes include §§ 29-16-05, Order or warrant requiring presence of defendant, and 29-16-06, Presence of defendant at proceedings before and after trial.
Judge Ilvedson moved that Rule 43 be adopted as read. Mr. Sand seconded the motion.
Judge Ilvedson said that he likes the federal rule, that our statutes provide that the defendant must be present all the way, but the federal rule says that once the trial has commenced he need not be present at stages.
The secretary was instructed to include Judge Ilvedson's comments on Rule 43 in the minutes. They read:
"The above Federal Rule 43 would change our present statutory law very little.
"Our code requires in felony cases that the defendant be personally present at the arraignment (29-13-02), at the trial (29-16-03), at rendition of the verdict (29-22-11), and at the sentencing (29-26-04).
"Our law in misdemeanor cases permits the absence of the defendant at the arraignment (29-13-02, can appear by counsel) at the trial (29-16-04, if such absence is voluntary), at the rendition of the verdict (29-22-11, in the discretion of the court), and when sentence is imposed (29-26-04, may be pronounced in his absence).
"Section 29-12-12 permits a corporation to appear by counsel in criminal cases against the corporation.
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"Section 29-16-05 gives authority to the Court to issue a warrant or order requiring personal attendance of a defendant at the trial in misdemeanor cases 'if presence is necessary for any purpose.'"
Mr. Glaser mentioned that the requirement that the defendant be present is not always adhered to, mentioning the use of the uniform traffic citation and the comments contained on its back.
The secretary was instructed to make note that the rule would supersede § 29-14-21, Plea of guilty put in only by defendant--Exception.
The question being on the adoption of Rule 43 as read, the motion carried.
There followed a discussion of superseded statutes, which include §§ 29-13-02, Defendant must be present if offense felony--Counsel may appear on misdemeanor; 29-16-03, Presence of defendant if felony charged; 29-16-04, Presence of defendant in prosecution for misdemeanor; and 29-22-11, Presence of defendant--Felony or misdemeanor.
Judge Ilvedson moved that § 29-16-05, Order or warrant requiring presence of defendant, be listed for retention. Judge Muggli seconded the motion. The motion carried.
The secretary was instructed to list §§ 29-16-06, Presence of defendant at proceedings before and after trial, and 29-26-04, Defendant's presence-Felony or misdemeanor, as being superseded.
Judge Ilvedson moved that § 29-28-25, Defendant need not appear in supreme court, be listed as being retained without mention in the rules. Judge Smith seconded the motion. The motion carried.
Judge Burdick moved to reconsider the action by which the committee had adopted Rule 43 for the purpose of amendment by adding the words or at any proceeding in the Supreme Court after the words Rule 35.
Judge Ilvedson read § 33-12-40, Appeal--Trial anew--Proceedings.
Judge Smith seconded Judge Burdick's motion.
Mr. Peterson read the notes of the Advisory Committee relating to Rule 43 [18 U.S.C.A., at 308].
The question being on Judge Burdick's motion, the motion carried.
Judge Ilvedson moved the adoption of Rule 43 as amended. Judge Muggli seconded the motion.
The chairman requested Judge Ilvedson to do research on why the rule does not permit sentencing in absentia.
Judge Burdick noted that it may be necessary to consider adding to the second sentence these words: and the imposition of sentence. He mentioned the case of State of Arizona v. Hunt, April 8, 1969, case No. 18428, a federal circuit court of appeals case as yet unreported.
Judge Burdick moved that the fourth sentence of the rule be amended by inserting the words or in the defendant's voluntary absence after the trial has been commenced in his presence after the word defendant. There was no second to this motion.
Judge Burdick moved to amend the rule by adding the words and imposition of sentence at the end of the second sentence and to adopt the rule as amended. Judge Ilvedson seconded the motion. The motion carried. Rule 43 as adopted reads:
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Rule 43. Presence of the Defendant.
The defendant shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules. In prosecutions for offenses not punishable by death, the defendant's voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict and imposition of sentence. A corporation may appear by counsel for all purposes. In prosecutions for offenses punishable by fine or by imprisonment for not more than one year or both, the court, with the written consent of the defendant, may permit arraignment, plea, trial and imposition of sentence in the defendant's absence. The defendant's presence is required at a reduction of sentence under Rule 35 or at any proceeding in the Supreme Court.
Judge Ilvedson said that he would do further research.
Judge Ilvedson noted that § 29-12-12, Appearance of corporation charged with offense--Pleas, would be superseded.
Judge Burdick moved that the action by which Rule 8(b) had been adopted be reconsidered for the purpose of amendment, and the rule be amended by deleting the words an offense or and inserting in lieu thereof the words one or more. Judge Muggli seconded the motion. The motion carried.
Rule 8(b) as amended reads:
Rule 8. Joinder of Offenses and of Defendants.
(b) Joinder of Defendants. Two or more defendants may be charged in the same indictment, information, or complaint if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting one or more offenses. Such defendants may be
charged in one or more counts together or separately and all of the defendants need not be charged in each count.
Judge Ilvedson read his draft of Rule 44(a) as follows:
Rule 44. Right to and Assignment of Counsel.
(a) Right to Assigned Counsel. Every defendant who is entitled to assigned counsel at public expense who is unable to obtain counsel shall have counsel assigned to represent him at every stage of the proceedings from his initial appearance before the committing magistrate or the court through appeal, unless he waives such appointment.
Judge Ilvedson moved the adoption of Rule 44(a) as read. Judge Muggli seconded the motion.
Judge Burdick called attention to the fact that Rule 44 is at variance with § 29-07-01.1, Appointment of counsel for indigents--Payment of expenses.
The question being on Judge Ilvedson's motion, the motion carried. [For wording of Rule 44(a) as adopted, see above.]
Judge Ilvedson read his draft of Rule 44(b) and his discussion of it as follows:
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Rule 44. Right to and Assignment of Counsel.
(b) Assignment Procedure. Counsel shall be assigned to represent the defendant if upon defendant's affidavit or sworn testimony it appears to the court or to the committing magistrate that the defendant is unable to obtain counsel. The defendant may be required to answer inquiries under oath concerning his need for appointment of counsel. A district judge of each judicial district shall at least annually furnish each magistrate in the district with a list of competent lawyers who have indicated their willingness to represent defendants in criminal cases. The magistrate or court shall endeavor to assign counsel from such a list on a systematic and rotating basis. Reasonable expenses necessary for adequate defense of
a needy person shall be paid by the county wherein the alleged offense took place after such expenses have been approved by one of the district judges of that judicial district. If the crime is being prosecuted in the county court of increased jurisdiction the reasonable expenses necessary for adequate defense of a needy person shall be paid by the county, after approval by the judge of the county court of increased jurisdiction.
"Discussion
"Rule 44(b) of the present federal rules is as follows: '(b) Assignment Procedure. The procedures for implementing the right set out in subdivision (a) shall be those provided by law and by local rules of court established pursuant thereto. As amended Feb. 28, 1966, eff. July 1, 1966."
"I have changed my draft of subsection (b) from the first draft dated December 6, 1968, in order to provide for the following:
"(1) For the systematic and orderly assignment of defense counsel by magistrates and judges;
"(2) For the appointment of counsel at the earliest stage of the criminal proceedings, to-wit, his initial appearance before a committing magistrate;
"(3) For the right of an indigent defendant to have other expenses paid in addition to attorney fees, upon approval of a district judge;
"(4) For the right of counsel to be appointed for defendants who are unable to obtain counsel for reasons other than financial;
"(5) For the appointment of counsel in misdemeanor cases and to permit the county judge of increased jurisdiction to approve for payment by the county of reasonable attorney fees."
Mr. Sand read § 29-07-01.1, Appointment of counsel for indigent Payment of expenses.
The chairman noted that there was nothing in the rule relating to municipal court. He asked if it was intended to cover municipal court.
Judge Ilvedson replied that he had not intended to cover municipal court because he does not believe that defendant charged with violation of an ordinance is entitled to counsel at public expense.
Mr. Sand noted that the attorney general has issued an opinion on that subject. The chairman requested him to bring a copy of that opinion to the Friday meeting.
Judge Smith said he thinks the rule should draw a distinction between "petty" misdemeanors and more serious misdemeanors.
The secretary was instructed to make note in the minutes of State v. Borst, 154 N.W.2d 888 (Minn. 1967), which required the appointment of
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counsel at public expense in a misdemeanor case. There followed a discussion of what criterion should be used in deciding whether a case warrants appointment of counsel at public expense.
Judge Ilvedson said he would like to proceed with discussion of other parts of the rule. He mentioned the list of defense lawyers. Burdick said this does not work out. Judge Smith said that he uses such a list, and it works pretty well.
Judge Erickstad called Judge Ilvedson's attention to State v. Starratt, 153 N.W.2d. 311 (N.D. 1967).
Judge Muggli asked if the rule could be worded so that, in the absence of a public defender system, it would apply.
Judge Burdick said the State Bar Association is going to work for passage of the Commissioners on Uniform State Laws' Public Defender Act.
Judge Erickstad read the notes of the Advisory Committee relating to Rule 44 (18 U.S.C.A., pocket part).
No further action was taken on Rule 44(b).
Judge Muggli read his draft of Rule 38 and his discussion of it follows:
Rule 38. Stay of Execution, and Relief Pending (((Review))) Appeal.
(a) Stay of execution.
(1) Death. A sentence of death shall be stayed if an appeal is taken.
(2) Imprisonment. A sentence of imprisonment shall be stayed when (a) an appeal is taken, (b) the defendant is admitted to bail, and (c) upon filing with the clerk of court of the county in which the conviction was had a certificate of the judge who presided at the trial, or of a judge of the supreme court, that in his opinion there is probable cause for the appeal.
"(COMMENT: The federal rule provides for a stay without the requirement of a certificate of probable cause as set out in § 29-28-13. I believe the requirement of a certificate of probable cause should be retained. Nowadays with the requirement that the state furnish the attorney and all court costs for an accused person, anyone found guilty would be foolish not to insist upon an appeal to stall for time and with the possibility that some error might be found. Under my proposed draft the accused would still be protected from an arbitrary judge who refused the certificate, as the Supreme Court can also issue the certificate.)"
(3) Fine. A sentence to pay a fine or a fine and costs, if an appeal is taken may be stayed by the (((district court or by the court of appeals))) court upon such terms as the court deems proper. The court may require the defendant pending appeal to deposit the whole or any part of the fine and costs (((in the registry of the district court))) with the clerk, or to give bond for the payment thereof, or to submit to an examination of assets, and it may make any appropriate order to restrain the defendant from dissipating his assets.
"(COMMENT: The foregoing subsection is taken directly from the federal rule and is the same as Colorado's.)"
(4) Probation. An order placing the defendant on probation shall be stayed if an appeal is taken.
"(COMMENT: This subsection is the same as the federal rule and that of Colorado.)"
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(b) Bail. Admission to bail upon appeal (((or certiorari)))shall be as provided in these rules.
"(COMMENT: See Federal Rule 46 on 'Bail.')"
(c) Application for Relief Pending (((Review))) Appeal. If application is made to (((a court of appeals or to a circuit judge or to a justice of the supreme court))) a higher court for bail pending appeal or for an extension of time for filing the record on appeal or for any other relief which might have been granted by the (((district court))) lower court, the application shall be upon notice and shall show that application to the court below or a judge thereof is not practicable or that application
has been made and denied, with the reasons given for the denial, or that the action on the application did not afford the relief to which the applicant considers himself entitled.
"(COMMENT: I have changed the wording of the federal rule somewhat, keeping in mind that we want this to apply to the justice and municipal courts.)
"§§ N.D.C.C. retained: 29-28-12
"§§ N.D.C.C. superseded: 29-28-13
"§§ N.D.C.C. involved: 29-28-14; 29-28-15; 29-28-16; 29-28-17
"QUESTION: How will this proposed rule work out in Justice and Municipal Courts?"
Judge Ilvedson moved that the committee be in recess until 9:00 a.m., Friday, May 16. The motion carried.
The chairman called the committee to order at 9:12 a.m., Friday May 16, with the following members present: Judge Erickstad, chairman; Judge Burdick; Judge Muggli; Judge Smith; Assistant Attorney General Sand; Mr. Glaser; Mr. Shaft. Also present were Mr. Peterson and Mrs. Quanrud.
Judge Muggli resumed his discussion of Rule 38. He read the Montana equivalent, § 95-2406 of the Code of Criminal Procedure.
Mr. Glaser read § 29-28-13, What judgments superseded by appeal-- Certificate of probable cause.
Judge Smith read § 12-50-01, Death sentence--Duty of court--Time for execution.
Judge Burdick moved that Rule 38(a)(1) be amended to read as follows:
Rule 38. Stay of Execution, and Relief Pending Review.
(a) Stay of Execution.
(1) Death. A sentence of death shall be stayed pending the determination of any appeal or other review by the Supreme Court of this state.
Judge Smith remarked that another statute involved if reviews are included is § 12-50-06, Governor only can reprieve. He commented that it is a codification of common law on reprieve.
Mr. Glaser seconded Judge Burdick's motion.
Mr. Sand moved that Rule 38(a)(1) be amended to read as follows:
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Rule 38. Stay of Execution, and Relief Pending Review.
(a) Stay of Execution.
(1) Death. A sentence of death shall be stayed pending the determination of any appeal or other review by an appropriate court of this state.
Judge Burdick seconded the motion.
Mr. Glaser asked if, the way it reads, a man filed an application under the Post Conviction Procedures Act, the sentence would be automatically stayed. It was generally agreed that it would be.
The question being on Mr. Sand's substitute motion, the motion carried. [For wording of Rule 38(a)(1) as adopted, see above.]
Judge Smith mentioned the governor's authority under § 76 of the state constitution. [The governor shall have power in conjunction with the board of pardons of which the governor shall be ex-officio a member and the other members of which shall consist of the attorney-general of the state of North Dakota, the chief justice of the supreme court of the state of North Dakota, and two qualified electors who shall be appointed by the governor. . . . to grant reprieves, commutations, a pardons after conviction for all offenses except treason and cases of impeachment; . . .] He said he thought the proposed rule would require amendment of § 12-50-06 and would infringe on the governor's constitutional powers.
Judge Burdick said that the term reprieve has nothing to do with guilt, that the committee was talking about review.
The chairman asked Judge Smith if he would express his views on Rule 38(a)(1).
Judge Smith said that Rule 38(a)(1) is not intended to impinge the authority of the executive as provided in § 76 of the state constitution and in ch. 12-50 of the code.
Judge Burdick moved that § 12-50-06 be listed for legislative revision. Judge Smith seconded the motion. The motion carried.
Judge Muggli read his draft of Rule 38(a)(2). [For wording, see p.15 of these minutes.] He said his thought was to retain our requirement of a certificate of probable cause in the hope that it might do away with frivolous appeals. He read § 2.4 of the Tentative Draft of the Standards Relating to Criminal Appeals of the American Bar Association Project on Minimum Standards of Criminal Justice, as follows:
"2.4 Eliminating frivolous appeals; pre-appeal screening.
"(a) Procedural devices for pre-appeal screening, designed to eliminate frivolous cases from appellate court dockets, are impractical and unsound in principal.
"(i) A requirement of the trial court's certificate as a condition of appellate review is inconsistent with the right to appeal unless a decision to refuse the certificate is itself appealable. If such decision is appealable, the procedure for transition of cases to the appellate court has been unnecessarily complicated and the burden upon the appellate court has been substantially increased.
"(ii) Devices for screening out frivolous cases by the appellate court, such as a requirement for leave of the court to appeal at the first level of review, add a useless stage to most appeals at a considerable burden to the court. Flexibility
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of procedure so that any appeal terminates, by a decision on the merits, at the earliest practical stage of its consideration in the appellate forum is far preferable.
"(b) There appear to be no acceptable penalties that can be imposed upon appellants who willfully prosecute frivolous appeals beyond the sanction of assessment of costs, which has no impact on those proceeding in forma pauperis."
Judge Burdick mentioned that he knew of United States Supreme Court cases relating to refusal of trial courts to appoint an attorney for an indigent defendant. He said he would send Judge Muggli the citations.
Judge Muggli moved that his draft of Rule 38(a)(2) be amended to read as follows:
Rule 38. Stay of Execution, and Relief Pending Review.
(a) Stay of Execution.
(2) Imprisonment. A sentence of imprisonment shall be stayed if an appeal is taken; the defendant is admitted to bail or released on his own recognizance; and there is filed with the court in which the conviction was had a certificate of the judge who presided at the trial, or of a judge of an appropriate appellate court, that in his opinion there is probable cause for the appeal.
Mr. Glaser read § 29-08-02, "Admission to bail" defined.
Judge Burdick read § 29-08-01, "Bail" defined.
Judge Smith seconded the motion. The motion carried.
Judge Muggli moved the adoption of Rule 38(a)(2) as amended. Mr. Sand seconded the motion.
There followed a discussion of probable cause.
Judge Muggli mentioned § 29-28-13, What judgments superseded by appeal--Certificate of probable cause.
The question being on the adoption of Rule 38(a)(2) as amended, the motion carried, Mr. Glaser voting nay. [For wording of Rule 38(a)(2) as adopted, see above.]
Mr. Glaser stated that his reason for voting against the adoption of Rule 38(a)(2) as amended is that he does not feel that a certificate of probable cause is desirable or necessary.
Judge Burdick stated that if it is discretionary whether a defendant is admitted to bail on appeal, the judge is controlling the thing irrespective of a certificate of probable cause.
Judge Muggli read § 29-29-13 and moved that it be listed as being superseded. Judge Burdick seconded the motion. The motion carried.
Judge Muggli read § 29-28-12, Appeal by state--Effect, and moved that it be listed as being retained without reference in the rules. Mr. Glaser seconded the motion. The motion carried.
Judge Muggli read his draft of Rule 38(a)(3) [For wording, see p. 15 of these minutes.] and moved its adoption with the following amendment: In the second sentence delete the word clerk and insert in lieu thereof the word court. Judge Smith seconded the motion.
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Judge Burdick moved to amend the draft by deleting the word court where it first appears in the first sentence and inserting in lieu thereof the words the judge who presided at the trial or a judge of an appropriate appellate court. Judge Muggli seconded the motion.
Discussion followed.' Judge Muggli mentioned § 33-12-36, Bail--Amount---Terms.
Judge Smith asked why not put a dollar limit on it and then apply this rule.
Judge Muggli suggested that he do further work on Rule 38(a)(3) and resubmit it. Judge Erickstad said he thought that was a good idea. Judge Muggli asked an expression of the opinion of the committee regarding a dollar limit on bonds.
Judge Muggli moved that Rule 38(a)(3) be adopted as amended. Judge Smith seconded the motion.
Mr. Glaser moved that consideration of Rule 38(a)(3) be postponed. Judge Burdick seconded the motion.
Mr. Peterson read Note 22, Stay of Fine, 18 U.S.C.A. Rule 58, at 157, citing Government of Virgin Islands v. Ferrer, 275 F.2d 497 (C.A. Virgin Islands 1960).
Judge Muggli stated that the basic problem to resolve is: Do we want an automatic stay of execution?
Judge Burdick said he would favor a stay of execution.
Mr. Glaser said he thinks there would be a problem if we make it automatic.
Judge Muggli said he thinks that if we do this, we are putting something into our present law that isn't there now.
Judge Erickstad said that Judge Muggli's point is, is this appellate where there is a completely new trial?
Mr. Glaser said he thinks it should be couched in terms of a bond.
The question being on Mr. Glaser's motion to postpone consideration of Rule 38(a)(3), the motion carried.
Judge Muggli read his draft of Rule 38(a)(4). (For wording, see p. 15 of these minutes.]
Judge Burdick suggested that the words if appeal is taken be deleted and the words pending the determination of any appeal or other review by an appropriate court be inserted in lieu thereof.
Judge Muggli said the change was agreeable to him and moved the adoption of Rule 38(a)(4) with the change. Mr. Glaser seconded the motion.
Judge Burdick moved that the words of this state be added after the word court. (There was no second to this motion.) The question being on Judge Burdick's motion, the motion carried.
Judge Muggli moved the adoption of Rule 38(a)(4) as amended. Judge Smith seconded the motion. The motion carried. Rule 38(a)(4) as adopted reads:
Rule 38. Stay of Execution, and Relief Pending Review.
(a) Stay of Execution.
(4) Probation. An order placing the defendant on probation shall be stayed pending the determination of any appeal or other review by an appropriate court of this state.
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Judge Muggli read his draft of Rule 38(b). [For wording, see p. 16 of these minutes.]
Judge Burdick moved that Rule 38(b) be adopted as read except that the word review be substituted for the word appeal. Mr. Sand seconded the motion. The motion carried.
Rule 38(b) as adopted reads:
Rule 38. Stay of Execution, and Relief Pending Review.
(b) Bail. Admission to bail upon review shall be as provided in these rules.
The committee recessed at 11:55 a.m. and was called to order again at 1:40 p.m., with the same persons present as in the morning.
It was agreed that the next meeting would be held on July 10 and 11.
Judge Muggli read his draft of Rule 38(c). [For wording, see p.16 of these minutes.]
Judge Muggli read § 32-32-01, Definition [of special proceedings].
Judge Muggli moved the adoption of Rule 38 as read. Judge Smith seconded the motion.
There followed a discussion of settled statement of the case. Judge Erickstad mentioned § 28-18-07, Application to supreme court when judge refuses to settle.
Judge Smith § 29-28-18, Transmission of papers to supreme court.
Judge Erickstad requested Judge Muggli to consider Rule 38(c) with particular attention to Kline v. Landeis, 147 N.W.2d 897 (1966), and Alaska Rule 41(o). He said that he is not saying that we should not broaden the rule but that we should be careful to determine what statutes ought to be retained and which, superseded.
There followed a general discussion of changes in the draft to bring its wording into conformity with parts of the rule previously adopted. Several changes were made by agreement, no motions to amend being made.
The question being on Judge Muggli's motion to adopt Rule 38(c), the motion carried. Rule 38(c) as adopted reads:
Rule 38. Stay of Execution and Relief Pending Review.
(c) Application for Relief Pending Review. If application is made to a judge of the appropriate appellate court for bail pending appeal or for an extension of time for filing the record on appeal or for any other relief which might have been granted by the trial court, the application shall be upon notice and shall show that application to the trial court is not practicable or that application has been made and denied, with the reasons given for the denial, or that the action on the application did not afford the relief to which the applicant considers himself entitled.
Mr. Sand read § 29-08-09, Admission to bail after conviction.
The chairman called on Mr. Glaser for a report on Rule 40, Commitment to Another District; Removal. Mr. Glaser said that he has not prepared a rule, mentioning his letter to the committee of Sept. 16, 1968, which he read, as follows:
"My assignment for the next meeting of our committee was Federal Rule 40. This rule has to do with the disposition of persons arrested in a district other than the district in which the complaint was issued. The substance of the rule is that a defendant may be brought before the nearest available commissioner for
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purposes of preliminary hearing and admission to bail before being removed to the district wherein the crime was committed or the prosecution pending.
"The same general subject matter is adequately covered by our proposed Rule 5(a).
"Recommendation: Federal Rule 40 should be omitted as there is no need for it within a single state."
Judge Erickstad mentioned arrests without warrant. Judge Burdick mentioned §§ 29-05-02, Who must make complaint; 29-05-30, Service of summons against corporation; and 29-06-25, Procedure against person arrested without warrant.
Judge Erickstad mentioned Rule 5(a), Appearance before the Magistrate. He said the important thing was the words without a warrant. He said the crucial issue is: Where do you take the defendant?
There followed a discussion of whether the subject matter of Federal Rule 40 should be embodied in Rule 5 or in a North Dakota Rule 40.
Further discussion of arrests without warrant followed. Judge Smith mentioned §§ 29-15-11, Removal by state--Procedure, and 29-15-12, Prosecution by officers of county where action was commenced--Jurisdiction of court. Judge Erickstad mentioned §§ 29-05-17, Requirements of warrant for accused from other county--Complaint to accompany, and 29-05-18, Accused taken to proper county--Delivery with him of complaint--Depositions Judge Smith read § 29-06-25, Procedure against person arrested without warrant.
Judge Smith read Rule 5(a) as adopted Jan. 27, 1968. Discussion followed, with particular reference to the last sentence: "If a person arrested without a warrant is brought before a magistrate, a compliant shall be filed forthwith in the county where the offense was allegedly committed, and a copy of the complaint shall be given to the arrested person within a reasonable time." Judge Smith asked: Why not amend Rule 5(a)?
Judge Burdick said that the sections he had in mind were 37-07-08, Hearing-Time--Promise of defendant to appear--Failure to appear, and 39-07-09, Offenses under which person halted may not be entitled to release upon promise to appear.
The chairman asked if Mr. Glaser would be willing to do a little research and communicate his research to Judge Smith, so that it can be decided whether to have a Rule 40 or to revise Rule 5.
Judge Muggli noted that Colorado and Delaware have dropped Rule 40.
Judge Erickstad called attention to Fournier v. Roed, 161 N.W.2d 458 (N.D. 1968), and to the California statute quoted in Fournier.
Mr. Glaser noted that Rule 4(b), Warrant or Summons Upon Complaint, Form, and Rule 5(a), Proceedings Before the Magistrate, Appearance Before the Magistrate, may be in conflict.
Judge Smith read his draft of Rule 41, as follows:
Rule 41. Search and Seizure.
(a) Authority to issue Warrant. A search warrant authorized by this rule may be issued by a magistrate authorized by law to act within the county wherein the property sought is located.
(b) Grounds for issuance. A warrant may be issued under this rule to search for and seize any property stolen or embezzled in violation of the laws of this or any other state or of the United States; or designed or intended for use as a means of committing a criminal offense, or which is or has been so used.
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(c) Issuance and contents. A search warrant can be issued only upon probable cause, supported by affidavit naming or describing the person, and particularly describing the property and place to be searched. If the magistrate is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. The warrant shall be directed to and executed by a peace officer of this state, and by no other persons except in aid of the officer, on his requiring it, he being present and acting in its execution. It shall state the grounds or probable cause for its issuance and the names of each person whose affidavit has been taken in support thereof. It shall command the officer to search the person or place named for the property specified. The warrant shall direct that it be served in the daytime, but if the affidavit or affidavits are positive that the property is on the person or in the place to be searched, the warrant may direct that it be served at any time. It shall direct that all property seized under the warrant be returned to the magistrate who issued the warrant.
(d)Execution and Return with Inventory. The warrant may be executed and returned only within 10 days after its date. The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken, or shall leave the copy and receipt at the place from which the property was taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person other than the applicant for the warrant or the person from whom or from whose premises, the property was taken. It shall be subscribed and sworn
to by the officer before the magistrate to whom it is returned. The magistrate shall upon request deliver a copy of the inventory to the person from whom or from whose promises the property was taken and to the applicant for the warrant.
(e) Motion for Return of Property and to Suppress Evidence. A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for use as evidence anything so obtained on the ground that (1) the property was illegally seized without warrant, or (2) the warrant is insufficient on its face, or (3) the property seized is not that described in the warrant, or (4) there was not probable cause for believing the existence of the grounds on which the warrant was issued, or (5) the warrant was illegally executed. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible in evidence at any hearing or trial. The motion to suppress evidence may also be made in the district where the trial is to be had. The motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.
(f) Return of Papers to Clerk. The magistrate who has issued a search warrant shall attach to the warrant a copy of the return, inventory and all other papers in connection therewith and shall file them with the clerk of the district court for the county in which the property was seized.
(g) Scope and definition. This rule does not prohibit any other act, otherwise inconsistent with it, by which property may be taken on a search warrant from any house or other place in which it is concealed, or from the possession of the person
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by whom it was stolen, embezzled, or used in the commission of a criminal offense, or of any other person in whose possession it may be. Nor shall this rule prohibit the taking of property under a search warrant when it is in the possession of any person with the intent to use it as a means of committing a public offense, or in the possession of another to whom he may have delivered it for the purpose of preventing its being discovered, and in such cases it may be taken on the warrant from such person, or from a house or other place occupied by him or under his control, or from the possession of the person to whom he may have delivered it. The term "property" is used in this rule to include documents, books, papers and any other tangible objects.
(h) Execution of Warrant--Use of Force. An officer directed to serve a search warrant may break open an outer or inner door or window of a house, or other place to be searched, or any part thereof, or anything therein, to execute the warrant, if, after notice off his authority and purpose he is refused admittance. To execute a search warrant, an officer may break open any outer or inner door or window of a house, or other place to be searched, for the purpose of liberating a person who, having entered to aid him in the execution of the warrant, is detained therein, or when necessary for his own liberation.
Judge Smith moved the adoption of Rule 41 as read. Judge Burdick seconded the motion.
Judge Burdick moved that Rule 41(a) be amended by adding the following words after the word located: or from which it has been removed. Mr. Glaser seconded the motion. The motion carried.
Judge Smith moved to amend Rule 41(b) by deleting the period after the word property, deleting the parenthetical numerals, and changing the capital letters S in Stolen and D in Designed to lower case letters.
Judge Smith mentioned Application of Houlihan, 31 F.R.D. 145 (D.N.D. 1962).
Mr. Sand mentioned Schmerber v. California, 384 U.S. 757, 16 L. 2d 908, 86 S. Ct. 1896 (1966).
Mr. Glaser mentioned 18 U.S.C.A. § 957, Possession of property in aid of foreign government.
The chairman requested Judge Smith to do further research on whether contraband is covered by Rule 41.
[The only action taken on Rule 41 was the amendment of the draft of 41(a) embodied in Judge Burdick's motion set out six paragraphs above.]
The meeting adjourned at 4:40 p.m.
Respectfully submitted:
Rebecca Quanrud, Secretary