Opinion

State v. Howe

  • 247 N.W.2d 647
  • 1976 N.D. LEXIS 161
Court
North Dakota Supreme Court
Filed
Nov 26, 1976
Status
Published
Author
O'Keefe
On the bench
Erickstad, James, O'Keefe, Paulson, Pederson, Sand, Vogel, William
Cited by
54 cases
Authority
More cited than 9.4%

―No precise words are necessary to convey a threat. It may be bluntly spoken, or done by innuendo or suggestion. A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited.‖

How later courts described this case

  • ―No precise words are necessary to convey a threat. It may be bluntly spoken, or done by innuendo or suggestion. A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited.‖
  • "Where intent of the accused is an element of the crime charged, its existence is a question of fact for the jury."
  • stating “[a] procedural rule cannot abrogate a substantive right”
  • the dismissal of a case is appealable if the order has the same effect as an order quashing an information

Written by the judges who cited it.

The opinion

JAMES H. O’KEEFE, District Judge

(dissenting).

An order by a district court in a criminal case not enumerated in 29-28-07 NDCC is not appealable by the State. State v. Fortune, 29 N.D. 289 , 150 N.W. 926 (1915). The statute has exclusive grounds for appeal. Allesi certainly does what the majority says it does — equates a motion to quash with a motion to dismiss. In criminal cases affecting the most substantial interest of all, i.e., — guilt or innocence, I would think it wrong to make such an equation and would reverse Allesi. See State v. Bauer, 153 N.W.2d 895, 897 , and other cases cited therein. I can best state what Judge Teigen said in dissenting to Allesi:

“Under the majority holding the State’s rights .of appeal in criminal cases have been broadened far beyond the limited rights provided by statute. The holding, in my opinion, amounts to judicial legislation.”

The majority says not the label, but rather the effect, controls. But that does violence to the clear enough wording of 29-28-07 NDCC which labels, if you please, precisely what is appealable. The decision today is judicial legislation.

A dismissal by a district judge based on presumed knowledge of the law, and in this case, some knowledge of the facts, should not be appealable unless the legislature says so in express terms. I would affirm the dismissal on the foregoing basis and therefore not reach the second question concerning the correctness of the trial judge in dismissing. I am satisfied however that the alleged conduct of Henry Howe rose to the legal dimensions necessary to constitute a “threat” and thus it became a properly chargeable offense in the information.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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