State v. Belyea

• Decision Date: 02 June 1900
• Citation: 83 N.W. 1,9 N.D. 353
• Parties: STATE v. BELYEA.
• Court: North Dakota Supreme Court

9 N.D. 353

83 N.W. 1

STATE

v.BELYEA.

Supreme Court of North Dakota.

June 2, 1900.

Syllabus by the Court.

1. The information charged, or attempted to charge, the defendants with the crime of murder in the second degree committed by the defendants while they were engaged in the commission of the felony defined by section 7177, Rev. Codes, relating to the crime of producing or attempting to procure the miscarriage of a woman pregnant with child. The facts constituting the offense defined in section 7177 were set out in the information. Held, that the information did not charge two distinct and independent offenses, and hence the demurrer thereto upon the ground of duplicity was properly overruled.

2. Held, further, that all averments in the information relating to the subordinate felony were properly and necessarily inserted in the information as descriptive of the major offense, that of murder in the second degree.

3. Held, further, that the subordinate felony defined by section 7177, Rev. Codes, is foreign to, and is not generically connected with, the offense of murder in the second degree, and hence said subordinate offense is not necessarily included in the commission of the crime of murder in the second degree, as defined by subdivision 3, § 7058, Id.

4. The jury returned the following verdict in response to certain instructions given to them by the trial court, and pursuant to a form of verdict furnished the jury by said court: “We, the jury, find the defendant E. H. Belyea guilty of the crime of unlawfully procuring an abortion, as charged in the information.” Held, that such verdict is illegal, and wholly unauthorized, in a case where the information charges the crime of murder in the second degree perpetrated while defendant is engaged in the commission of an independent felony. Held, further, that the verdict erroneously assumed that the offense referred to in the verdict is necessarily committed in the commission of the offense of murder in the second degree.

5. The information criticised with respect to certain phraseology improperly employed in charging the crime of murder in the second degree.

Appeal from district court, Ramsey county; D. E. Morgan, Judge.

E. H. Belyea was convicted of crime, and appeals. Reversed.M. H. Brennan, Joseph Denoyer, and Cochrane & Corliss, for appellant. P. J. McClory, State's Atty., and John F. Cowan, Atty. Gen., for the State.

WALLIN, J.

The defendant was charged with the crime of murder in the second degree by an information filed in the district court by the state'sattorney of Ramsey county. After a plea of not guilty, the issues were tried by a jury, and the following verdict was returned into court and recorded: “We, the jury, find the defendant E. H. Belyea guilty of the crime of unlawfully procuring an abortion, as charged in the information.” Upon said verdict the trial court, on July 8, 1899, entered a judgment of conviction, and thereby sentenced the defendant to serve a term of three years at hard labor in the penitentiary at Bismarck. The information upon which the defendant was tried and convicted is as follows: “P. J. McClory, as state's attorney in and for the county of Ramsey, state of North Dakota, as informant, here in open court, in the name and on behalf and by the authority of the state of North Dakota, gives this court to understand and be informed that heretofore, to wit, on the sixth day of January, A. D. 1899, at the county of Ramsey and state of North Dakota, one E. H. Belyea, and Albert Sampson, late of said county and state aforesaid, did commit the crime of murder, committed as follows, to wit: That on the first day of January, A. D. 1899, at the city of Devils Lake, in said county and state, the said E. H. Belyea and Albert Sampson did then and there, unlawfully, maliciously, willfully, and of their malice aforethought, employ and use a certain instrument, to this informant unknown and not ascertainable, in and upon the person of one Julia Solberg, who was then and there a woman pregnant with child, and did then and there unlawfully, maliciously, willfully, and of their malice aforethought introduce said instrument into the womb of the said Julia Solberg, with intent then and there to procure and produce the miscarriage and abortion of the said Julia Solberg; the said E. H. Belyea and Albert Sampson then and there well knowing that the use of the said instrument would produce such miscarriage and abortion, and it not being necessary to the preservation of the life of the said Julia Solberg, and, by means and in consequence of the use and employment of the said instrument by the said E. H. Belyea and Albert Sampson in and upon the person of the said Julia Solberg, she, the said Julia Solberg, then and there being wounded of her body, from then and until the 6th day of January, A. D. 1899, in the county and state aforesaid, did languish, and at the same time and place she, the said Julia Solberg, of the mortal wound aforesaid died, and the said E. H. Belyea and Albert Sampson, in the manner and by the means aforesaid, her, the said Julia Solberg, did unlawfully, maliciously, feloniously, willfully, and of their malice aforethought kill and murder, and in this did commit the crime of murder in the second degree; this contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of North Dakota. Dated at Devils Lake, Ramsey county, North Dakota, May 4, A. D. 1899.” To this information defendant demurred, assigning several of the statutory grounds of demurrer, including the ground of duplicity, and the ground that the facts stated do not constitute a public offense. The demurrer was overruled. After the verdict was returned, and prior to the sentence, a motion for a new trial and a motion in arrest of judgment were interposed in defendant's behalf. Both motions were denied by the trial court.

The record in the case, as transmitted to this court, is voluminous, and embraces a statement of the case, including the evidence and numerous exceptions, and counsel for the appellant in their brief filed in this court have made numerous assignments of error based upon exceptions found in the record. But in disposing of the case this court has not found it necessary to rule upon any of the exceptions or assignments of error save those which relate to the verdict, and to certain instructions given to the jury by the trial court relating to the verdict. The record embraces the following recital: “That after twenty-four hours' deliberation the jury returned into court and announced the following verdict: ‘We, the jury in the above-entitled action, find the defendant E. H. Belyea guilty of unlawfully producing an abortion. C. B. Kendall, Foreman.’ That the court refused to accept said verdict, or to record the same, but instructed the jury orally that he had prepared another form of verdict, which was submitted to them, and requested them to retire and consider their verdict further. That thereafter, and on the same day, to wit, June 24th, the defendant and his counsel being present in court, and also counsel for the state, the court directed the bailiffs in charge of the jury to bring them into court. The jury being brought into court, and the roll of jurors called by the clerk, the court inquired of the jury, ‘Have you agreed upon a verdict?’ To which C. B. Kendall, a member of the jury, replied, ‘We have not, your honor.’ Thereupon the court instructed the jury that the substituted form of verdict which he had handed them did not amount, if agreed upon, to a conviction of the defendant of any degree of homicide, but that the same amounted to an acquittal of the charge of murder and manslaughter, and requested the jury to retire for further deliberation. The defendant, by his counsel, then and there excepted to the remarks of the judge on the ground and for the reason that the jury had not asked for further instructions, and that they had been called into court by the court and without any request upon their part, which exception was allowed. That thereafter, and within the space of five minutes, the jury returned into court, and the roll of the jury having been first called, and all the jurors reporting present, by their foreman they report the following verdict: ‘We, the jury, find the defendant E. H. Belyea guilty of the crime of unlawfully procuring an abortion, as charged in the information. C. B. Kendall, Foreman,’-which verdict was received and recorded, the jury polled, and, each member of the jury answering that the verdict as read was his verdict, the jury were discharged.”

Exception is taken to the charge of the trial court as embodied in the following instruction given to the jury: “The crime of procuring an abortion is a lesser crime than the crime of murder in the second degree, and is necessarily included in the charge of murder in the second degree contained in the information; so that the information charges the crime of procuring an abortion by means of instruments.” This instruction, in effect, was repeated elsewhere in the charge. But, before taking up either the instructions to the jury or the verdict, it will be necessary to refer briefly to the nature of the accusation against the defendant.

The information, in terms, names the offense which is embodied in its as murder, and in its concluding sentence the offense is designated as murder in the second degree. The information is obviously and avowedly framed with reference to subdivision 3, § 7058. Rev. Codes, which declares that homicide is murder “when perpetrated without any design to effect death by a person engaged in the commission of any felony.” No claim is made that the offense of murder in the first degree is charged, and the respondent's counsel in their brief expressly disclaims any intention of setting out the offense of abortion as defined by section 7086, Id. Neither the allegations of the...