(dissenting). The defendant was by affidavit charged with the crime of maintaining for the second time a common nuisance contrary to the statute and the order of the court. He was not prosecuted by indictment or information; he was denied a trial by jury, and in a summary manner he was convicted and sentenced to serve in the penitentiary for two years. He appeals to this court, claiming that the conviction is erroneous and without jurisdiction.
By statute whenever a district judge forbids the keeping of such is declared a common nuisance. For the first offense the punishment is not less than $200 nor more than $1,000, and imprisonment in the county jail not less than ninety days nor more than one year. For the *502second and each subsequent offense, tbe punishment is not less than one year nor more than two years in tbe penitentiary. § 10,117.
By statute whenever a district judge forbids tbe keeping of such a common nuisance, then any person keeping tbe same contrary to tbe statute and tbe order of tbe court is guilty of a crime named a contempt. For such offense a person may be prosecuted, convicted and sentenced to tbe penitentiary without any indictment or information and without a trial by jury. Tbe conviction may be on bogus and hearsay affidavits, which are made presumptive evidence of guilt. Tbe accused may be required to answer questions concerning bis guilt and to testify against himself. He may be punished for tbe first offense and for tbe second offense to tbe same extent precisely as if no in-junctional order bad been issued. This procedure is a recent discovery, and a most insidious contrivance for evading tbe right of trial by jury and for securing a conviction where a jury might fail to agree. A partisan statute names tbe crime a contempt, and then provides for a trial of tbe same in a summary manner. Under tbe statute when a person is accused of committing a crime contrary to law and tbe order of tbe court,- bis right to a trial by jury is forfeited. Tbe forfeiture depends on tbe form of tbe accusation, and not on tbe guilt or innocence of tbe accused. Though the accused be ever so innocent, be cannot demand a trial by jury.
Of course tbe imprisonment of two years is for the keeping of a common nuisance. Were it for disregarding tbe order of tbe district court, it would be no bar to a prosecution for tbe real and primary offense. ■ For that offense tbe accused would still be liable to punishment by indictment or information, to conviction by a jury, and to imprisonment for two years. But no one claims that tbe purpose of tbe statute was to duplicate tbe offense and tbe punishment. Its purpose was to convict tbe accused in tbe most summary manner without a trial by jury. And hence, tbe crime was named a contempt. Under- a similar statute giving tbe same name to any other crime, a person might be accused and convicted of any crime, such as tbe contempt of robbery, or tbe contempt of murder.
In this case we should try to form a clear perception of tbe distinction between a trial for a crime and a summary contempt procedure. A crime or public offense, is an act which tbe law forbids and punishes *503with death, imprisonment, or fine. Comp. Laws, § 10,385. A crime is an offense against the state and the state alone may punish or condone it; a contempt of court — so far as it.is not a crime — is an offense against the court or judge, and he alone may punish or condone it. A crime is punishable according to the law of the land; a contempt — so far as not a crime — is punishable only according to the will of the contemned judge. The same act, as the beating of a judge, may constitute both- a crime and a contempt. In such a case, the judge may condone the personal offense, or punish it summarily by fine and imprisonment. ' And in accordance with the law of the land, the state may prosecute and punish the criminal offense. The summary punishment by an offended judge is merely a personal affiair between him and the offender. It is not strictly a legal proceeding. It does never convict the offender of a crime or brand him as a criminal.
By statute in certain specified cases, a contempt of court is made a misdemeanor. § 9419. And in such cases a court of record may summarily punish the contempt by a fine not exceeding $250 or by imprisonment not exceeding thirty days or both. §§ 8178, 8179. The statute fixes a definite limit on any summary punishment, — it says to the court, “Thus far mayest thou go, and no farther.” But when the state commences a prosecution to invoke and call down the penalties of the law, then its procedure must conform to the law and the Constitution; then the accused must have a trial by jury, and he cannot waive it. He cannot even by express consent give the judge jurisdiction to try the case.
When a prosecution is for a crime, then it is no summary matter, then it is not a word and a blow, then there must be a strict observance of these sacred guaranties of the Constitution.
Section 7. The right of trial by jury shall be secure to all and shall remain inviolate.
Section 8. All offenses shall be prosecuted criminally by indictment or information.
Section 13. No person shall be compelled in any criminal case to be a witness against himself.
We need not argue to prove that the right of trial by jury should forever be held sacred. Arbitrary power may not safely be given to any man. It makes him a tyrant and a despot, it ruins, the character of a *504judge. As Blackstone has written: — In settling and adjusting questions of fact, when intrusted to a single magistrate, partiality and injustice have ample field to range in; either by boldly asserting to be true that which is not so, or by more artfully suppressing some circumstances, stretching and warping others, and distinguishing away the remainder.
In the early days, one Markuson was summarily convicted of the crime of contempt and sentenced to the penitentiary for two years. The conviction was sustained by a specious and politic decision. State v. Markuson, 5 N. D. 147, 64 N. W. 934. And now in a stand pat way, without defending it, some of our justices seem disposed to follow the lead of that case. The reasons of the decision do not all appear in black and white. Here is the gist of the specious reasoning: It was not the purpose of the statute to punish for a substantive offense under the guise of punishing for contempt. At common law in a summary proceeding the courts had power to convict and imprison the accused for two years. That jurisdiction is inherent in the courts of this state. Hence the statute served no purpose only to give to the judges nerve and backbone. — Just think of it, two years in the penitentiary — the highest penalty of the statute, and still, as the court says, it was not the purpose to punish for a substantive offense!
Alas! then truth and candor wept.
And, at common law the courts never exercised any such jurisdiction. Furthermore, in contempt cases, the courts of this state have never had any common-law jurisdiction. The arbitrary power that judges once exercised as a part of the royal prerogative was never imported to the Dakotas. It was not in keeping with the western spirit of freedom, equality, and independence. Hence, the statute does justly fix a narrow limit to the arbitrary power of judges.
Finally, the questions presented are these:
1. Was the defendant convicted of the crime of keeping a common nuisance? Ans. Yes.
2. Was he under the statute convicted of a felony and sentenced to imprisonment for two years? Ans. Yes.
3. Was he prosecuted by indictment or information? Ans. No.
4. Did he have a trial by jury? Ans. No.
These direct questions and answers may not be artfully suppressed *505or distinguished away or ignored; they admit of no dispute, no evasion, no equivocation. Under the Constitution, as it is, no ‘person may be convicted of any crime and sent to the penitentiary without a trial by fury. Hence, in this case the trial and conviction and sentence were in direct conflict with the fundamental law.
The majority decision has been given without any conference or discussion of the great questions of constitutional law presented by this dissent. It merely follows an old political decision, which is manifestly wrong. Indeed, it is a reproach to the court. It does manifest violence to the plain words of the Constitution. No judge or lawyer can honestly attempt to maintain that under our Constitution a person may be convicted of crime and sentenced to the penitentiary for two years without a trial by jury. No one can maintain that the guaranties of the Constitution may be changed or evaded by any name the legislature may choose to give to a crime. Hence, let us hope that on a motion to reconsider each judge of the court may declare the law in accordance with his oath and the Constitution, regardless of any political fear or favor.
Furthermore, “It is not within the province of a legislature to declare a person guilty or presumptively guilty of a crime.” McFarland v. American Sugar Ref. Co. 241 U. S. 86, 60 L. ed. 904, 36 Sup. Ct. Rep. 498. Hence the legislature may not make an accusation presumptive evidence of crime. •
Hnder § 10,118, Compiled Laws, defendant is charged with a second offense. The affidavit charging the offense is made presumptive evidence of guilt; the fine is excessive; it is not less than one nor more than two years in the penitentiary, and defendant is denied a trial by jury. For these reasons the statute is void; it is too drastic.
The minimum or lowest degree of the offense charged may consist of nothing more than the harmless sale of a few bottles of beer — a thing not malum in se — a thing legal and common in most countries, and not forbidden by Scripture. One year in the penitentiary is the least punishment for all crimes excepting treason, murder, manslaughter in the first and second degree, arson and burglary, forgery in the third and fourth degrees, grand larceny, perjury, manslaughter in the second degree, maiming, shooting with intent to kill, assault with intent to kill, robbery, dueling, assault with a dangerous weapon, rape in the *506second degree, adultery, abortion, child stealing, bigamy, incest, sodomy, burglary in the third degree, and extortion.
Manifestly, the least penalty for such odious crimes is excessive when applied to the lowest grade of crime contrary to § 10,118. Hence, the statute is void for three reasons: (1) Its penalties are excessive; (2) it makes an accusation presumptive evidence of crime; (3) it denies the right of trial by jury.