Opinion
File No. Cr. 155.
Opinion filed February 23, 1938.
Appeal from the County Court of Ward County, Funke, J.
The defendant was convicted of illegally operating a motor vehicle and appeals from a judgment of conviction.
Affirmed.
Henry E. Johnson, for appellant.
"Carrying on business" does not mean conducting, prosecuting, and continuing business by performing progressively all the acts normally incident thereto, while "doing business" conveys the idea of business being done, not from time to time, but all the time. Lewellyn v. Pittsburgh, B. L.E.R. Co. (C.C.A. Pa.) 222 F. 177; Florsheim Bros. Dry Goods Co. v. Lester, 60 Ark. 120, 29 S.W. 34, 46 Am. St. Rep. 162; Uihlein v. Caplice Co. 39 Mont. 327, 102 P. 564; General Electric Co. v. Best Electric Co. (D.C.N.Y.) 220 F. 347; Winterbottom v. Casey (D.C. Mich.) 283 F. 518; America Brick Tile Co. v. Turnell, 133 Minn. 54, 173 N.W. 175; Loverin Browne Co. v. Travis, 135 Wis. 322, 115 N.W. 829; Sucker State Drill Co. v. Wirtz Bros. 17 N.D. 313, 115 N.W. 844.
Much weight should be given to the construction of the statute by the officers or departments whose duty it is to enforce it. People ex rel. Simmons v. Anderson, 198 Mich. 38, 164 N.W. 481; State v. Krause, 186 Wis. 59, 202 N.W. 319; State v. Sorlie, 56 N.D. 650, 219 N.W. 105; Ford Motor Co. v. State, 59 N.D. 792, 231 N.W. 883; 59 C.J. 1025.
Where the legislature has by implication adopted the construction of a law that construction is binding on the courts. Kelly v. Snow, 168 Minn. 298, 210 N.W. 105; State ex rel. Dakota City v. Bryan, 200 N.W. 870.
Alvin C. Strutz, Attorney General, Milton K. Higgins, Assistant Attorney General, Roy A. Ilvedson, State's Attorney, and B.A. Dickinson, Assistant State's Attorney, for respondent.
"Business," in a legislative sense, is that which occupies the time, attention and labor of men for the purpose of a livelihood or for profit. Smallwood v. Jeter, 244 P. 149.
"Carrying on business" does not mean the performance of a single disconnected business act, but means conducting, prosecuting and continuing business by performing progressively all acts normally incident thereto. 1 Words Phrases, 4th Series, 357; Hutchins v. Burnet, 58 F.2d 514.
"Regularly" does not mean continuously or occasionally, but connotes usually and systematically. Cauchon v. Gladstone, 160 A. 254; Mobile Lines v. McConnell, 126 So. 626.
The state has the right, in the exercise of its police powers as a sovereign authority, to regulate and control the use of its highways for travel. 2 R.C.L. 1171; 108 Am. St. Rep. 196; 3 Ann. Cas. 487.
The legislature of each state has the power to require the licensing of every motor vehicle operating within its boundaries, and to establish detailed and reasonable regulations applicable to their use on public highways. 2 R.C.L. 1172, 1176.
A law licensing automobiles does not necessarily violate the Federal Constitution in requiring the registration of machines of nonresidents, providing that it is not discriminatory in its operations. 2 R.C.L. 1180.
The mere fact that a regulation is or may be burdensome is not in itself an argument against validity. Ibid.
The mere fact that a license regulation may touch interstate commerce does not make it invalid. Avery v. Interstate Grocery Co. 118 Okla. 268, 248 P. 340, 52 A.L.R. 528 with annotation on pp. 533 et seq.
The primary rule in the construction of a statute is to give effect to the intention of the legislature. Camas Stage Co. v. Kozer, 104 Or. 600, 209 P. 95, 25 A.L.R. 27.
It is a fundamental rule of constitutional law that every presumption is in favor of the constitutionality of a statute enacted by a legislature. This presumption becomes conclusive unless it is clearly shown that the enactment is prohibited by the state or Federal Constitution. State ex rel. Linde v. Taylor, 33 N.D. 76, 156 N.W. 564; Gore v. Taylor, 51 N.D. 792; State v. Police Ct. (Mont.) 219 P. 819; State v. Pepper (Mont.) 226 P. 1108.
Every presumption is in support of the theory that the legislature has properly exercised its power. State v. Shapiro, 139 Md. 168, 101 A. 703, Ann. Cas. 1918E, 196; 1 Cooley, Taxn. 3d ed. 456.
The state may regulate the use of its highways by nonresidents, even as to the use for a single day. Hendrick v. Maryland, 235 U.S. 610, 59 L. ed. 385; Kane v. New Jersey, 242 U.S. 160, 61 L. ed. 222.
The state could require a license of a resident of a Federal military reservation. Storaasli v. State (Minn.) 230 N.W. 572, 283 U.S. 57, 75 L. ed. 839; Barley v. Smit, 40 F.2d 958.
An automobile owner, claiming exemption from a statute imposing a license on automobiles, has the burden of proving the exemption, and must present a clear case. Camas Stage Co. v. Kozer, 104 Or. 600, 209 P. 95.
In this case a criminal information was filed against the defendant by the state's attorney of Ward county for violation of § 19, subd. c, chap. 160, Session Laws of 1933. The action was tried in the county court of Ward county, the defendant was found guilty of a violation of said statute, and appeals from the judgment of conviction.
He specifies error as follows:
"1. The court erred in overruling the defendant's Motion for Dismissal of this action, which Motion was made on the ground and for the reason that under the stipulated and admitted facts the defendant was not guilty of any crime.
"2. The court erred in finding the defendant guilty of the crime of operating a motor vehicle in violation of law, as charged in the Amended Information filed in the said Court.
"3. The court erred in entering judgment of conviction against the defendant.
"4. The court erred in overruling the defendant's motion for arrest of judgment and dismissal of the action after judgment of conviction had been entered."
The principal contention of the appellant on the argument is that the evidence is insufficient to sustain the conviction. No statement of case was settled containing the proceedings had and the evidence adduced upon the trial. There was no motion for a new trial. The record contains an affidavit by the defendant and a stipulation of counsel attached thereto to the effect:
"That a jury trial be waived in the matter of the State of North Dakota v. Walter G. Johnson, and that the court may render its decision as to the guilt or innocence of the defendant and that the facts stated in the above affidavit of Walter Johnson are material facts in issue and may be considered by the court as the facts of this case. Also that defendant was driving his automobile on highways of Ward county on November 26, 1937, in the course of his employment, as set out in his affidavit."
Judgment of conviction was rendered November 27, 1937, and the defendant was sentenced on December 1, 1937. There is attached to the record as certified to this court what is denominated an additional stipulation of facts signed by the assistant state's attorney and the attorney for the defendant. This additional stipulation of facts is dated December 2, 1937, the day after sentence was pronounced.
Every reasonable presumption is in favor of the correctness of a judgment. When a defendant in a criminal action claims that a judgment of conviction is contrary to the evidence he must present to the Supreme Court a record affirmatively showing error.
"The appellate court will only consider the errors which are urged before it and specifically pointed out and the review is confined to matters or objections urged below. 11 C.J. 221. It is a well-settled rule of general application that `an appellate court will indulge all reasonable presumptions in favor of the correctness of the judgment, order, or decree from which the appeal is taken. In other words it will be presumed on appeal, in the absence of a contrary showing, that the trial court acted correctly and did not err. Indeed error is never presumed on appeal, but must be affirmatively shown by the record; and the burden of so showing it is on the party alleging it, or as sometimes stated, the burden of showing error affirmatively is upon the appellant or plaintiff in error.' 4 C.J. 731-733. See, also, Erickson v. Wiper, 33 N.D. 193, 222, 157 N.W. 592. And on an `incomplete record, the appellate court will presume any conceivable state of facts within the scope of the pleadings and not inconsistent with the record which will sustain and support the ruling or decision complained of; but it will not, for the purpose of finding reversible error, presume the existence of facts as to which the record is silent.' 4 C.J. 736." Brissman v. Thistlethwaite, 49 N.D. 417-421, 192 N.W. 85.
It is well settled in this state that the question whether a judgment of conviction in a criminal case is sustained by the evidence cannot be raised for the first time in the Supreme Court. Where a defendant in a criminal action desires to attack the verdict of a jury or the finding of the trial court on the ground of insufficiency of the evidence, he must first raise such question in the trial court after the finding has been made. The finding of fact, whether it consists of the verdict of a jury or the decision of a trial court, cannot be attacked for the first time in the Supreme Court. State v. Glass, 29 N.D. 620, 151 N.W. 229.
A defendant in a criminal action who desires to challenge the sufficiency of the evidence must first give the trial court an opportunity to pass upon the question whether the evidence is sufficient to sustain the finding of fact on which the judgment of conviction rests. He should move for a new trial and by appropriate specification call to the attention of the trial court the particulars which he claims renders the evidence insufficient to sustain the finding of fact as made by the jury or the trial court. In this case no attack was made upon the sufficiency of the evidence to sustain the decision of the trial court. There was a motion to dismiss before the decision was made but no ruling of the trial court was invoked after the decision had been made. The record certified to this court consists only of the amended information, the affidavit of the defendant and the stipulation between the state's attorney and the attorney for the defendant as regards the facts contained in such affidavit, minutes of the court, defendant's motion for a dismissal of the action, the judgment of conviction and sentence, specifications of error and notice and undertaking on appeal. We cannot even assume that the so-called affidavit or stipulation of facts was the only evidence that was introduced. We must assume in support of the judgment every fact that is not clearly negatived by the record submitted. Upon the record submitted here it does not appear that the judgment is erroneous. Accordingly it is affirmed.
CHRISTIANSON, Ch. J., and NUESSLE, BURR and MORRIS, JJ., concur.
SATHRE, J., being disqualified, did not participate, Hon. DANIEL B. HOLT, Judge of First Judicial District, sitting in his stead.