State v. Ankney

• Decision Date: 08 February 1972
• Docket Number: Cr. N
• Citation: 195 N.W.2d 547
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Charles Junior ANKNEY, Defendant and Appellant. o. 398.
• Court: North Dakota Supreme Court

Page 547

195 N.W.2d 547

STATE of North Dakota, Plaintiff and Respondent, v. Charles Junior ANKNEY, Defendant and Appellant.

Cr. No. 398.

Supreme Court of North Dakota.

Feb. 8, 1972.

Rehearing Denied March 29, 1972.

Syllabus by the Court

1. In a criminal case there is no legal distinction insofar as weight and effect to be given is concerned between circumstantial evidence and direct evidence.

2. Where the circumstances are such as to reasonably justify an inference of guilt, as found by the jury, the fact that an inference of innocence might likewise be reasonably drawn therefrom does not present a question of law for review by an appellate court any more than does a verdict based upon direct conflicting evidence. In neither case will the verdict be disturbed.

3. The accused's constitutional rights are not violated when an incriminating oral statement is made to a bystander before the accused has been given the Miranda warnings and the defense introduces such oral statement on cross-examination of a prosecution witness.

4. There is not an unreasonable delay in taking an accused before a magistrate when the accused is arrested late on a Sunday evening and appears before a magistrate on the following day where the time between the arrest and the appearance is not used by law enforcement officers for the purpose of securing damaging statements from the accused through the medium of interrogation and elicitation.

5. Where the record fails to show that the trial court submitted written instructions to both counsel and requested that they examine them and present any exceptions, such omission preserved the exceptions to the written instructions on appeal. § 29--21--33, NDCC.

6. In passing upon a motion for a new trial based on the insufficiency of the evidence, the trial court is clothed with a wide discretion, and its determination with respect to such sufficiency will not be disturbed unless there appears to have been abuse of that discretion.

Robert A. Feidler, Grand Forks, and Kenneth R. Pearson, Minneapolis, Minn., for defendant and appellant.

Helgi Johanneson, Atty. Gen., Bismarck, Thomas B. Jelliff, State's Atty., Thomas L. Zimney, Asst. State's Atty., Grand Forks, for plaintiff and respondent.

PAULSON, Judge.

The defendant, Charles Junior Ankney, has appealed to this court from the verdict of guilty and final judgment upon a conviction of the crime of burglary in the Grand Forks District Court, as well as from the order denying the motions for a new trial and for judgment notwithstanding the verdict.

The relevant facts leading to the arrest of Ankney are:

--Edgar P. Beyers, the secretary-manager of the Grand Forks Elks Lodge, at approximately eleven o'clock on the evening of Sunday, November 30, 1969, was making a routine check of the lodge's building when he discovered that the building had been entered. Beyers immediately returned to his home, which was a short distance away, and summoned the Grand Forks police. The first two policemen to arrive at the scene were Officer Walter Mitchell, who positioned himself near the southwest corner of the Elks building, and Officer Dennis Jenson, who approached the building from its north side.

--Officer Jenson testified that as he approached the north door of the Elks building he saw two men, each carrying wrecking bars, coming out through the north door. Upon seeing Officer Jenson the two men went back into the building. Thereupon Officer Jenson by means of his car radio advised Officer Mitchell that there were two men in the building. Shortly thereafter, Officer Jenson heard three shots coming from the southwest side of the building and he proceeded to investigate the shots. Upon reaching the southwest corner of the building, Officer Jenson found Officer Mitchell holding his gun on the defendant, Ankney. Officer Mitchell testified that he heard Officer Jenson's radio alert as to the presence of the two men in the building and that he then saw two men fleeing from the building through the southwest door. Upon being ordered to stop, one of the suspect--Ankney--stopped and the other suspect fled toward the parking lot on the east side of the building. Officer Mitchell fired three warning shots, but the second suspect did not stop and to this date has not been apprehended.

--Shortly after Officer Jenson arrived at the southwest door of the Elks building, Sergeant Norman Hinsz of the Grand Forks Police Department reached the scene and proceeded to search Ankney for weapons and to advise Ankney that he was under arrest. Ankney then was handcuffed and was laid prone on the ground. Leaving Officer Mitchell with Ankney, Officer Jenson and Sergeant Hinsz went to the north side of the building and entered it through the doors which had been jimmied open and left slightly ajar by intruders. While in the process of searching the building, the police officers found the lock broken on an office door and the office safe owned by the Elks Club loaded on and tied to a dolly. They also found two wrecking bars on the floor, just inside the southwest door from which Ankney and his companion had fled.

Ankney argues on appeal that there was no evidence to connect him with the wrecking bars or with the broken doors or with the safe, and that there was insufficient evidence presented to the jury to justify a finding of guilty. He argues that no fingerprint evidence was introduced at his trial and that Officer Jenson could not identify Ankney as one of the intruders who was attempting to leave the Elks building through the north door. Ankney contends that there was only circumstantial evidence revealed at the trial and that such evidence was insufficient to overcome the presumption of his innocence.

The evidence presented by the State consisted solely of the testimony of Mr. Beyers, Officers Mitchell and Jenson, and Sergeant Hinsz; photographs of the interior of the Elks building portraying the damage to the broken door lock in the secretary-manager's office, the location of the safe loaded on the dolly, the jimmied entrance doors, and the two crowbars which were located near the southwest door of the building; as well as an architect's layout of the Elks building and its parking lot. No fingerprint evidence was introduced. The defense did not call Ankney nor any witnesses on his behalf.

The law in this State relevant to the sufficienty of circumstantial evidence was stated by this court in State v. Emmil, 172 N.W.2d 589, 591 (N.D.1969):

'. . . The law does not require that every fact going to make up a case be proved by eyewitnesses or by direct evidence. In criminal as well as in civil cases, issues may, generally speaking, be established by circumstantial evidence. 30 Am.Jur.2d, Evidence Sec. 1091, p. 248.

'This court has held that there is no legal distinction, so far as weight and effect to be given is concerned, between circumstantial evidence and direct evidence. State v. Foster, 14 N.D. 561, 105 N.W. 938 (1905).

'Thus circumstantial evidence alone may justify a conviction, provided it is of such probative force as to enable the trier of facts to say that the defendant is guilty beyond a reasonable doubt.'

In 30 Am.Jur.2d, Evidence § 1125, page 292, it is stated:

'It is a well-established general principle that the guilt of one accused of a crime may be proved by circumstantial evidence. In criminal prosecutions a resort to circumstantial evidence is, in the very nature of things, a necessity. Crimes are usually committed in secret and under conditions where concealment is highly probable, and to require direct testimony would, in many cases, result in freeing criminals and would deny proper protection to society.'

Section 12--35--02 of the North Dakota Century Code provides:

'Definition of burglary--Punishment.--Any person who:

'9. Breaks into and enters at any time any building or any part of a building . . . with intent to steal or to commit a felony,

is guilty of burglary . . .'

Considering the facts of this case in the light of the authorities cited above, we find Ankney's contention that there was insufficient evidence to convict him wholly without merit. If Ankney's argument prevailed, then it could lead to the result that a burglar would have to be caught in the act of moving or attempting to break open a safe in a building before there would be sufficient evidence to justify his conviction. It is recognized that fingerprint evidence or evidence that Ankney was wearing gloves would have strengthened the State's case, but in this day and age all but neophyte criminals are aware of the consequences of leaving fingerprints. In Clifton v. State, 26 Fla. 523, 7 So. 863 (1890), a case closely analogous to that at bar, the Florida Supreme Court in upholding the sufficiency of the evidence in a burglary case made the following observation:

'On the night the store was broken into the owner went to the store some time after night, and saw some one light a match inside, and discovered that a window, which he had closed about night, had been broken open, whereupon he hallooed, and the defendant and another man jumped out of the window, and ran off; and upon entering the store two or more sacks with goods of different kinds belonging to Revels were found in them, which in our judgment clearly evidenced the intention of the parties who entered the store to steal the goods found therein, and that the jury were safe in coming to the conclusion that it was the intention to steal goods to the value of more than $20.'

In State v. Carroll, 123 N.W.2d 659 (N.D.1963), this court considered the sufficiency of the evidence in an arson case and quoted, at page 668, from State v. Moore, 101 N.W.2d 579 (N.D.1960), in which this court cited People v. Newland, 15 Cal.2d 678, 104 P.2d 778, at 780, which quoted the case of People v. Martinez, 20 Cal.App. 343, 128 P. 952, as follows:

""Where the circumstances are such as to reasonably justify an inference of guilt, as found...