(dissenting). This case arises under the common nuisance section of the Prohibition Statute. The appeal is from a judgment that the defendant be imprisoned for two years in the state’s prison. The majority opinion sustains the judgment, which I consider manifestly wrong. In writing this dissenting opinion, I do solemnly thank God that my love for right and justice is far above any regard for my office. I am in no way dependent on the office and I have little regard for it, only so far as it presents an opportunity to sustain the right and to denounce the wrong. This I say, because in writing this opinion I am sure to give offense to a large class of zealous and well-*247•organized people who make and unmake judges. (“Who enters here leaves hope behind.”)
In the summer of 1912, when I was a candidate for the office of :supreme court judge, the commander or president of these good people presented for my signature a written pledge in regard to my decisions under the Prohibition Statute in case of my election. Of course I did not sign it; and, of course, I was not elected. That and some drastic ■decisions by this court suggest the thought that some judges may have secured and held onto office by signing such a pledge. The majority ■decision cites some early decisions which stand as a reflection on this court. In the Markuson Case from Valley City, it was held competent for a district judge on a common nuisance charge to convict a man in a summary manner, without a trial by jury, and to sentence him to a term in the state’s prison. It is hard for a lawyer to see how such a decision was made, only as the result of a pull which acted like the force of gravity. It is true the nuisance was named a contempt, and by that name it was held competent to evade the Constitution, which- guarantees to every person accused of crime the right of trial by jury. Hence, as we pray the Lord to lead us not into temptation, so may we pray that our judges be not led into temptation by any pledge or any ■influence or by the thought of re-election.- Indeed, it were well if- the ■Constitution or custom were so as to remove all such temptations. I am free to allow that our present judges are all like Csesar’s wife, above suspicion, and that they innocently signed the decision without a thought ■of its political effect. However, it would have looked better if the'appeal had been decided when it was argued, early in January, and when we all appeared to agree that the conviction of the defendant was erroneous. Certain it is, there was no judge to say a word to the contrary, and there was no good reason for not deciding the case when it was fresh in the mind of all the judges. >
The defendant was convicted of a second common nuisance under the Prohibition Statute. His sentence is two years in the state’s prison. The conviction is void because it is based on a complaint or information which is fatally defective. A valid complaint for a second offense must state facts showing the commission of a first offense, because without a first offense there cannot be a second offense, and it must show that each offense was committed within three years, because after the-*248lapse of three years the law does not permit a prosecution based on any offense, except murder. It is contrary to the policy of the law and the welfare of society to permit the raking up of old scores and stale matters outlawed by statute.
So far as it concerns the first offense, the information is in these words: “That on or about the 8th day of February, 1908, the said defendant was arraigned in the district court of "Williams county, North Dakota, charged with the crime of keeping and maintaining a common nuisance in the county of Williams in the state of North Dakota; that the said action was brought on for trial and a verdict of guilty returned by the jury on or about the 28th day of February, 1908, and the said defendant was sentenced by the court on or about the 28th day of February, 1908, and rendered himself in execution of said sentence, and that the said sentence has not been modified, vacated, or set aside.” The trial was in Ward county, and the alleged conviction for a first offense was in Williams county, eight years prior to the trial in Ward county, and we have no record of the alleged first conviction. There is no charge or attempt to charge that the defendant did commit a first offense of any description. The charge is merely that in 1908 he was convicted of the crime of maintaining a common nuisance. It does not show that the nuisance or conviction had any relation to the Prohibition Law. For aught that appears from the information, the first common nuisance may have been the obstruction of a highway, for which a person may be prosecuted and punished. Under the Constitution no person can be prosecuted for a public offense, except on an information or indictment, which must state the facts constituting the offense. The allegations of an information or indictment must be direct and certain in regard to the offense charged. Comp. Laws 1913, § 10,686. The objection that the facts do not constitute a public offense may be taken on motion or in arrest of judgment (§ 10,745), and for this reason counsel for defendant made such a motion. In charging the commission of a second offense it is necessary to state the facts showing the commission of a first offense and also to state, in a general way, that the accused was-duly convicted of the first offense. Under the statute it is not, necessary to set forth the record of the conviction, as it was at common law, and for that reason the judges rush to the conclusion that it is npt necessary to state the facts showing a first offense. The con*249viction alone is not sufficient, because it is no uncommon thing for a party to be convicted when he is perfectly innocent. At Salem, Massachusetts, seven women were convicted of witchcraft, and now we know that their conviction and execution was an outrage and a disgrace to the commonwealth. The law is short and pointed. The charge is that eight years prior to the date of the information the defendant was convicted of the keeping of a common nuisance. To say that there is a charge of the commission of two offenses against the Prohibition Law, we must do violence to our common sense and the fundamental rules of pleading.
And there is no reason for giving a drastic construction to a drastic statute to sustain a drastic sentence of a poor human being. The majority opinion concludes by saying the facts were fully and fairly submitted to a jury. That is a gross error, or a mere assumption, and it is not warranted by anything in the record. And, indeed, the conviction is under a drastic statute which does not accord with the limitations of the prohibition section of the Constitution. In that section the word “suitable” is used as a limiting adjective before the word “penalties.” The word is used for some purpose. It means that the penalties of the statute must be reasonable, just, and humane, and not drastic, cruel, or vindictive.
Birdzell, J.I regret that Mr. Justice Bobinson has used language in his dissenting opinion from which it is made to appear that the majority of the court formerly concurred in his views as to the law and that they are responsible for delaying the decision. The facts are that the members of this court never concurred in the views expressed by Mr. Justice Bobinson and that they all signed the majority opinion soon after it was written, more than a month ago. The majority opinion was not filed earlier owing to the practice which prevails in this court of giving every member an opportunity to file his views before a case shall be regarded as decided. Mr. Justice Bobinson has, very properly, been the recipient of this courtesy in this instance, and though the majority opinion has been in his hands since it was first written, his dissenting views have just been prepared for filing.
I am authorized to say that this statement is made on behalf of all the members of this court, with the obvious exception of Mr. Justice Bobinson.