State v. Alfstad, Cr. N

• Decision Date: 29 September 1959
• Docket Number: Cr. N
• Citation: 98 N.W.2d 371
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Harlen D. ALFSTAD, Defendant and Appellant. o. 295.
• Court: North Dakota Supreme Court

Page 371

98 N.W.2d 371

STATE of North Dakota, Plaintiff and Respondent, v. Harlen D. ALFSTAD, Defendant and Appellant.

Cr. No. 295.

Supreme Court of North Dakota.

Sept. 29, 1959.

Syllabus by the Court

1. The weight of the evidence and the credibility of the witnesses are questions for the jury, and a verdict based on substantial evidence, even though contradicted by the defendant, will not be disturbed on appeal.

2. Unless requested instruction properly stating the law has been submitted to the court, the instruction given is not subject to attack on appeal.

3. Failure to give a particular instruction is not reviewable on appeal in the absence of an objection to the charge as given and a proper request for the instruction desired.

4. In a criminal action, where the trial court submitted written instructions to counsel for both sides and requested any exceptions or additions thereto to be made before the instructions were given by the court, and where counsel for defendant, the following day, noted certain exceptions to the instructions and the court made the corrections requested by defendant's counsel, and where defendant's counsel then stated in the record that the instructions were satisfactory to the defendant, he may not thereafter take exception to such instructions. Sec. 29-2133, NDRC 1943.

Duffy & Haugland, Devils Lake, for appellant.

Leslie R. Burgum, Atty. Gen., Vincent La Qua, State's Atty., Fessenden, and Joseph C. McIntee, Towner, for respondent.

STRUTZ, Judge.

The defendant was convicted of rape in the first degree in the district court of Wells County. He appeals from the judgment of conviction and urges two specifications of error in support of his appeal. First, he contends that the evidence is insufficient to sustain the verdict of the jury and, second, that the instructions to the jury by the trial court were not sufficient and that the lack of sufficient instructions amounted to misinstruction. The defendant contends that the failure of the court to instruct on the degree of resistance and the degree of force required was error, in that the jury might well have determined if there was any evidence of resistance, however slight, and if the defendant used any force, however slight, a conviction should be had.

The complaining witness, at the time of the alleged offense, was almost nineteen years of age. It therefore was necessary for the State to produce evidence of force. There was ample evidence of force in the record. We feel that no useful purpose would be accomplished by a recital of the details of the events leading up to this charge, but will say that the prosecuting witness testified positively as to the use of force. It is true that the testimony as given by the defendant is in direct conflict with the testimony given by the prosecutrix. However, the prosecutrix's testimony is corroborated by the condition of her person and the condition of her clothing. Her testimony further is corroborated by the fact that she made immediate complaint to the members of her family upon being taken home by the defendant. Following her complaint, her parents immediately contacted the officers in the county seat and the defendant was arrested within a few hours after the commission of the crime.

The prosecutrix testified positively to the use of force by the defendant to accomplish his purpose. The testimony of the members of her family as to her complaint immediately upon reaching home, her physical condition, and the torn and muddy condition of her clothes all indicate that there was substantial evidence upon which the jury could find a verdict of guilty. While the defendant's testimony squarely contradicts the testimony of the State's witnesses, he gives no satisfactory explanation of the physical condition of the prosecutrix and the torn and muddy condition of her clothes.

Since there was substantial evidence of the defendant's guilt, it was for the jury to pass on that question. Questions of the weight of the evidence and the credibility of witnesses are always for the jury, and a verdict based on substantial evidence, even though contradicted by the defendant, will not be disturbed on appeal. State v. Keller, 77 N.D. 165, 42 N.W.2d 319; State v. Gebhard, 73 N.D. 206, 13 N.W.2d 290; State v. Johnson, 58 N.D. 832, 227 N.W. 560; State v. Bossart, 61 N.D. 708, 240 N.W. 606.

The defendant further urges, as ground for reversal, that the instructions of the trial court were insufficient and that the lack of sufficient instructions amounted to misdirection of the jury. The defendant vigorously contends that the failure of the court to instruct on the degree of resistance and the degree of force required was prejudicial error. The court instructed on the question of rape in the language of the statute, but failed to specifically instruct on the degree of resistance or the degree of force necessary to constitute the crime. No instruction was requested by the defendant on the question of resistance of the complaining witness or on the question of the degree of force necessary by the defendant. Generally, unless an instruction properly stating the law has been requested, the instruction given is not subject to attack on appeal. 24 C.J.S. Criminal Law Sec. 1674, p. 302.

In other words, a failure to give a particular instruction is generally not reviewable on appeal unless an objection to the...