State v. Holte, Cr. 282

Citation87 N.W.2d 47
Decision Date30 December 1957
Docket NumberCr. 282
PartiesSTATE of North Dakota, Plaintiff and Respondent, v. Marlyn Clifton HOLTE, Defendant and Appellant.
CourtUnited States State Supreme Court of North Dakota

Syllabus by the Court.

1. In criminal as well as in civil cases the credibility of witnesses and the weight to be given to their testimony are matters for the determination of the jury.

2. Where a trial court in imposing sentence upon one convicted of a crime fixes the penalty within the limitations prescribed by statute this court has no power to review the sentence. This rule is not altered by the fact that the jury recommended leniency.

3. For reasons stated in the opinion it is held that the defendant had a fair trial.

Ella Van Berkom, Minot, for appellant.

Leslie R. Burgum, Atty. Gen., and LeRoy A. Loder, State's Atty. of Ward County, Minot, for respondent.

MORRIS, Judge.

At a trial had before a jury the defendant was convicted of the commission of the crime of attempted indecent liberties upon the person of an individual under eighteen years of age as prescribed by Section 12-3011, 1953 Supplement to NDRC 1943 and sentenced to three years in the State Penitentiary. The jury added to its verdict a recommendation of leniency.

The defendant appeals from the judgment of conviction and in his brief sets forth three issues: one, insufficiency of the evidence to sustain the verdict; two, that the sentence imposed was excessive in the light of the evidence and the recommendation of leniency; and three, that the defendant did not have a fair trial.

We approach a consideration of the sufficiency of the evidence with the rule in mind that in criminal as well as civil cases the credibility of witnesses and the weight to be given to their testimony are matters for the determination of the jury. State v. Thompson, 68 N.D. 98, 277 N.W. 1; State v. Gulke, 76 N.D. 653, 38 N.W.2d 722; State v. Keller, 77 N.D. 165, 42 N.W.2d 319; State v. Johnson, 58 N.D. 832, 227 N.W. 560; State v. Ugland, 48 N.D. 841, 187 N.W. 237; State v. Mozinski, 49 N.D. 228, 191 N.W. 345; State v. Severin, 58 N.D. 792, 228 N.W. 199; State v. Young, 55 N.D. 194, 212 N.W. 857; State v. Stumbaugh, 28 S.D. 50, 132 N.W. 666; People v. Newland, 15 Cal.2d 678, 104 P.2d 778; People v. Cook, 136 Cal.App.2d 442, 288 P.2d 602.

The evidence is such that it amply warrants a determination by the jury that these are the facts. On July 20, 1956, the date of the crime charged, the defendant was 27 years of age and a resident of Minot, where he lived with his wife. He was unemployed. She was employed. He was driving around town in his automobile at about six o'clock in the evening waiting for his wife to get through work. He had been drinking liquor that day.

At about ten minutes after six o'clock P.M. an eleven year old girl was waiting for a bus at a corner in a residence district of Minot. She was being sent by her mother on an errand to a drugstore downtown. While she was waiting the defendant, who was a stranger to the girl, drove up in a car and asked her to show him where the airport was. She told him it was just over the hill and he said it would be better if she would show him where it was. At first she refused. Then he promised to take her to the drugstore. At first she wanted to ask her mother but he persuaded her to accompany him and she got in the car. He drove out to the airport. After they reached the airport he told her there were some horses about a mile and a half farther on. After proceeding east from the airport about a mile he drove down into a roadside ditch and stopped the car. He moved over close to her, put one arm around her neck and on her chest and kissed her and hung on to her tight. With the other hand he tried to lift up her dress. She put her elbow down to hold it. She started to cry, jumped out of the car and ran. He did not try to forcibly restrain her. She ran crying to the airport. The defendant attempted to get her to reenter the car on the promise that he would take her down to the drugstore, but she continued running and crying. She secured the license number of his car. Someone called the police from the airport. A search was started for the offender. The next morning the defendant was apprehended and taken to the police station where he signed a statement that in general corroborates the statements of the girl. It was admitted in evidence without objection. At the trial the defendant took the witness stand and in part denied and in part stated that he could not remember the facts related by the girl.

The defendant, however, challenges the sufficiency of these facts to warrant the jury in finding the defendant guilty of the crime charged.

Section 12-3011, 1953 Supplement to NDRC 1943 provides that:

'Every person who shall take any indecent liberty with or on the person of any individual under the age of eighteen years, which act under law does not amount to rape, or attempt to commit rape, or assault with intent to commit rape, or sodomy, or other crime against nature, is guilty of a felony, and shall be punished by imprisonment in the penitentiary for not less than one year nor more than fifteen years, and for any second offense of said crime by punishment in the state penitentiary for not less than five years.'

Pursuant to the provisions of Section 12-0401, NDRC 1943 an attempt to commit a crime is 'An act done with intent to commit a crime and tending but failing to effect its commission, is an attempt to commit that crime.'

Section 12-0402, NDRC 1943 prescribes punishments for attempts on a basis of relationship to the punishment prescribed for the crime attempted. In this case the applicable provision is as follows:

'If the offense so attempted is punishable by imprisonment in the penitentiary for four years or more, or by imprisonment in a county jail, the person guilty of such attempt is punishable by imprisonment in the penitentiary or in a county jail, as the case may be, for a term not exceeding one-half the longest term of imprisonment prescribed upon a conviction for the offense so attempted;'

The question of the sufficiency of the facts to support a conviction of attempt to commit the crime of indecent liberties takes us to a consideration of the meaning of indecent liberties. In commenting upon the scope of the statute this court, in State v. Flath, 59 N.D. 121, 228 N.W. 847, 852, said:

'The plain intent of this statute is to cover all forms of indecedent liberties except rape, attempt to commit rape, or assault with intent to commit rape or sodomy or crime against nature. These excepted...

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8 cases
  • Sorenson v. State
    • United States
    • United States State Supreme Court of Wyoming
    • December 27, 1979
    ...Mich. 317, 251 N.W. 393 (1933). "Indecent liberties" is self- defining. State v. Stuhr, 1 Wash.2d 521, 96 P.2d 479 (1939); State v. Holte, N.D., 87 N.W.2d 47 (1957); State v. Hoffman, 240 Wis. 142, 2 N.W.2d 707 (1942); State v. Kunz, 90 Minn. 526, 97 N.W. 131 (1903); State v. MacMillan, 46 ......
  • State v. Ennis
    • United States
    • United States State Supreme Court of North Dakota
    • December 17, 1990
    ...in fixing a term of imprisonment within the range authorized by statute. State v. Joern, 249 N.W.2d 921, 923 (N.D.1977); State v. Holte, 87 N.W.2d 47, 50 (N.D.1957). Appellate review of a criminal sentence is confined to determining whether the judge acted within the limits prescribed by st......
  • State v. Murphy
    • United States
    • United States State Supreme Court of North Dakota
    • November 5, 2014
    ...term of imprisonment within the range authorized by statute.”); see also State v. Joern, 249 N.W.2d 921, 923 (N.D.1977) ; State v. Holte, 87 N.W.2d 47, 50 (N.D.1957) ; State v. Taylor, 70 N.D. 201, 212, 293 N.W. 219, 225 (1940) ; State v. Jochim, 55 N.D. 313, 319–21, 213 N.W. 484, 487–88 (1......
  • State v. Oasheim, Cr. N
    • United States
    • United States State Supreme Court of North Dakota
    • July 11, 1984
    ...98 S.Ct. 2264, 56 L.Ed.2d 759 (1978); State v. Klein, 200 N.W.2d 288 (N.D.1972); State v. Alfstad, 98 N.W.2d 371 (N.D.1959); State v. Holte, 87 N.W.2d 47 (N.D.1957); State v. Johnson, 58 N.D. 832, 227 N.W. 560 (1929). The victim's testimony is sufficient to sustain Oasheim's conviction agai......
  • Request a trial to view additional results

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