Grandin Inv. Co. v. Hartung

• Decision Date: 30 December 1922
• Citation: 49 N.D. 364,191 N.W. 783
• Parties: GRANDIN INV. CO. v. HARTUNG et al.
• Court: North Dakota Supreme Court

49 N.D. 364

191 N.W. 783

GRANDIN INV. CO.

v.HARTUNG et al.

Supreme Court of North Dakota.

Nov. 23, 1922.

Rehearing Denied Dec. 30, 1922.

Syllabus by the Court.

For errors of law, the judgment is reversed, and a new trial granted.

Additional Syllabus by Editorial Staff.

In an action on notes, where the defense was that they were given to compound a felony, evidence that the original note sold plaintiff was a forgery, but that upon request he substituted notes signed by his brother, which was accepted by plaintiff, the answer alleging such defense held insufficient.

In an action on notes, where the defense was that they were given to compound a felony, an instruction that an agreement to compound a crime might be either express or implied from the facts and circumstances was erroneous.

Appeal from District Court, Stark County; H. L. Berry, Judge.

Suit by the Grandin Investment Company against Nicholas Hartung and another. From a judgment of dismissal, plaintiff appeals. Reversed, and new trial granted.J. W. Sturgeon, of Dickinson, for appellant.

Simpson & Mackoff, of Dickinson, for respondents.

ROBINSON, J.

The plaintiff appeals from a judgment of dismissal. The suit is on two promissory notes made by the defendants to the plaintiff on June 4, 1918, for the sum of $3,500. The defense is that the notes were given to compound a felony. The defendants are brothers. They had been doing business at Dickinson as partners under the firm name of Hartung Real Estate & Loan Company. T. N. Hartung was the sheriff of Stark county. Nicholas Hartung had sold the plaintiff the note and mortgage for $3,500 cash. It being conceded that the notes and mortgage were forged, Nicholas Hartung was requested to refund the money or to give other security. He had a good growing crop and was considered responsible. Without any question or unpleasantness he offered to give notes with the signature of his brother, who was responsible. The offer was accepted, and the notes in suit were made to the plaintiff.

[2] The appellant assigns errors on the rejection of evidence, the instructions of the court, and the insufficiency of the answer.

(1) The answer does not state a defense because it does not show the commission of a crime or an agreement to compound a crime. The answer is, in effect, that if the notes were given at all, they were given to compound a felony and upon the agreement or understanding to conceal the offense of forgery, alleged by the plaintiff to have been committed by Nicholas Hartung, which forgery was alleged to be of a note and mortgage for the sum of $3,500. The answer neither shows the commission of a crime nor an agreement to compound a crime. It does not show any defense.

[3] (2) Error is assigned on the charge of the judge. He repeatedly charged that an agreement to compound the crime might be either express or implied from the facts and circumstances. There was cogent, forcible, and preponderating evidence that not a word was said about a crime or the compounding of a crime. Yet the court elaborated on an implied agreement which might be inferred from the mere giving of the promissory notes in question without a word being said concerning any crime. Clearly the charge was erroneous, and the judgment must be reversed, and a new trial granted.

BIRDZELL, C. J., and CHRISTIANSON and GRACE, JJ., concur.

BRONSON, J., concurs in result.

CHRISTIANSON, J. (concurring specially).

In this state the Legislature has spoken as follows as regards the compounding of crimes and the compounding of prosecution:

“ Compounding Crimes. Every person who, having knowledge of the actual commission of a crime or violation of statute, takes any money or property of another or any gratuity or reward, or any engagement or promise therefor, upon any agreement or understanding, express or implied, to compound or conceal such crime or violation of statute, or to abstain from any prosecution therefor, or to withhold any evidence thereof, is punishable,” etc. Section 9401, C. L. 1913.

“ Compounding Prosecution. Every person who takes any money or property of another or any gratuity or reward, or any engagement or promise therefor, upon any agreement or understanding, express or implied, to compound, discontinue or delay any prosecution then pending for any crime or violation of statute, or to withhold any evidence in aid thereof, is guilty of a misdemeanor.” Section 9402, C. L. 1913.

In this case there is no contention that a prosecution had been commenced. In other words, there is no contention that a prosecution was compounded; but the contention is that a felony was...