State v. Bendickson

• Decision Date: 19 May 1932
• Docket Number: Cr. 78
• Court: North Dakota Supreme Court

242 N.W. 693

62 N.D. 201

STATE OF NORTH DAKOTA, Respondent, v. SELMER BENDICKSON, Appellant

No. Cr. 78

Supreme Court of North Dakota

May 19, 1932

Appeal from the District Court of McLean County, Jansonius J.

Affirmed.

McCulloch & McCulloch and R. L. Fraser, for appellant.

A verdict cannot be changed after the jury is discharged. Mai v. People, 224 Ill. 414, 79 N.E. 653; Elgin v. People (Ill.) 80 N.E. 1014; People v. Darr (Ill.) 99 N.E. 651; 2 R.C.L. 23.

No demurrer to an information need be interposed when the facts stated do not constitute a public offense, but this objection may be taken at the trial under a plea of not guilty and by a motion in arrest of judgment. State v. Mutschler, 55 N.D. 121, 212 N.W. 832.

James Morris, Attorney General, and G. A. Lindell state's attorney, for respondent.

"When compliance is had with the statute in regard to allegations of malice and intent, additional descriptive words will be deemed mere surplusage and be disregarded." 5 C.J. 560.

The general rule is that, when the facts, acts, and circumstances are set forth with sufficient certainty, it is not a fatal defect that the indictment or information gives the offense no name or an erroneous name. 31 C.J. 669; 14 R.C.L. 175; People v. Phipps, 39 Cal. 326.

The offense charged is to be determined by the statements of fact in the information and not by the designation given in the caption. State v. Wyatt (Iowa) 41 N.W. 31; Camp v. State, 25 Ga. 689; State v. Marcks, 3 N.D 532, 58 N.W. 25; State v. Gillette (Iowa) 61 N.W. 169.

Where an averment, which is necessary to support a particular part of a complaint or information filed in a criminal case, is imperfectly stated, or stated in very general terms, a verdict or plea of guilty cures the defective averment though such averment might have been bad on demurrer or on motion to quash. State v. Knowles, 34 Kan. 393, 9 P. 861.

It is only in the case of an omission of allegations as to ingredients of the offense that pertain to the substance thereof, that the insufficiency of the information can be attacked after trial by a motion in arrest of judgment. State v. Hastings, 54 N.D. 871, 211 N.W. 815; State v. Johnson, 17 N.D. 554, 118 N.W. 230; 14 R.C.L. 211.

A verdict will not be held void for uncertainty if its meaning can be determined by reference to the record proper. Coleman v. State (Okla.) 194 P. 282.

The form of the verdict is a matter of exception and any objection thereto should have been made at the time. State v. Ridge (Mo.) 274 S.W. 496.

The language of the verdict being that of "lay people" need not follow strict rules of pleading or be otherwise technical. Bishop, Crim. Proc. 2d ed. § 1005a-1; Peters v. Jackson, 5 W.Va. 644.

A verdict in a criminal case should be read in connection with the indictment, and when so read, if its meaning is certain, it is sufficient. (W. Va.) 94 S.E. 540; State v. Hayes, 122 N.W. 652.

If a verdict as returned is not complete, but is ambiguous in its terms, the ambiguity may sometimes be explained and the verdict construed with the evidence and the charge of the court. State v. Snipes (N.C.) 117 S.E. 500.

"Verdicts are to have a reasonable intendment and are to receive a reasonable construction and are not to be avoided unless from necessity." Espy v. State (Ga.) 92 S.E. 229.

Berry, Dist. J. Christianson, Ch. J., and Neussle, Burr, and Birdzell, JJ., concur. Mr. Justice Burke did not participate, Hon. H. L. Berry, Judge of Sixth Judicial District, sitting in his stead.

OPINION

BERRY

The defendant, Selmer Bendickson, was convicted in the District Court of McLean county of the crime of burning buildings other than dwellings, as defined by § 2, of chapter 115, of the Session Laws of 1929. His motion in arrest of judgment was denied, and judgment was entered on the verdict. He appeals from the order denying the motion and from the judgment.

On January 30th, 1931, defendant, Selmer Bendickson, was the owner of a garage, not a parcel of a dwelling house, which was fully insured, if not over insured, against loss or damage by fire. He procured one Jacob F. Kempf to set fire to the garage, and promised Kempf "that he would make it right with him, if Kempf did this burning."

The garage was set on fire by Kempf at six o'clock A.M. on January 30, 1931, while the defendant was at Bismarck. Kempf confessed, implicated the defendant in the matter, pleaded guilty, and was sentenced to the penitentiary for his part in the transaction. On the trial Kempf was returned from the penitentiary and testified as a witness for the state against the defendant, Selmer Bendickson. Defendant admitted his guilt to several parties before the trial.

The questions raised on this appeal may be considered under two general classifications, objections to the sufficiency of the indictment, and objections to the sufficiency of the verdict.

Counsel for the defendant couches the objection to the indictment in the following words: "That the indictment does not state facts sufficient to constitute a public offense, particularly, that the indictment charges the defendant with the crime of arson and that the facts alleged in the indictment do not constitute the crime of arson."

The following is the charging part of the indictment:

"That heretofore, to-wit, On the 30th day of January, in the year of our Lord One Thousand Nine Hundred and Thirty-one, at the County of McLean, in the State of North Dakota, one Selmer Bendickson, late of said County of McLean and State aforesaid, did commit the crime of Arson, committed as follows, to-wit: That at the said time and place, the said Selmer Bendickson did corruptly, wickedly, advisedly, wilfully, maliciously, feloniously and intentionally procure one Jacob F. Kempf feloniously, wilfully, maliciously and unlawfully to set fire to and to burn a certain building, not a dwelling house, more specifically described as follows, to-wit: A garage of the said Selmer Bendickson, situated in the City of Garrison, in the County of McLean, and State of North Dakota, then and there the property of the said Selmer Bendickson, and which said building was then and there at the time of committing of the crime aforesaid, insured against loss and damage by fire under a subsisting, valid and legal contract of insurance, properly executed and delivered for legal consideration in accordance with the laws of the State of North Dakota pertaining to fire insurance by the Girard Fire & Marine Insurance Company, Chicago, Illinois, a corporation, in the sum of $ 500.00 and by Northwestern Fire & Marine Insurance Company, Minneapolis, Minnesota, a corporation, in the sum of $ 1,300.00, by then and there wickedly, advisedly and corruptly offering to the said Jacob Kempf a reward with intent to him the said Selmer Bendickson thereby then and there to procure him, the said Jacob F. Kempf feloniously, wilfully, and maliciously to set fire to and burn the said garage aforesaid, with intent of him, the said Selmer Bendickson, then and there to injure and defraud others, to-wit: the said insurers.

"This contrary to the form of statutes in such case made and provided and against the peace and dignity of the State of North Dakota."

Sections 1 and 2, of chapter 115, of the Session Laws of the state of North Dakota for the year 1929, read as follows:

"§ 1. Arson. Punishment. Any person who wilfully and maliciously sets fire to, or burns or causes to be burned or who aids, counsels or procures the burning of any dwelling house, or any kitchen, shop, barn, stable, or other out house that is parcel thereof, or belonging to or adjoining thereto, whether the property of himself or of another, with intent thereby to injure, damage or defraud another, shall be guilty of arson, and upon conviction thereof, be sentenced to the penitentiary for not less than two or more than twenty years.

"§ 2. Burning Buildings Other Than Dwellings. Any person who wilfully and maliciously sets fire to, or burns or causes to be burned or who aids, counsels or procures the burning of any barn, stable, garage or other building, whether the property of himself or of another, not a parcel of a dwelling house, or any shop, storehouse, warehouse, factory, mill or other building, whether the property of himself or of another; or any church, meeting house, court house, work house, school, jail or other public building or any public bridge, shall, upon conviction thereof, be sentenced to the penitentiary for not less than one nor more than ten years."

From an examination of the indictment we find that it contains all of the material allegations of the crime of burning buildings other than dwellings, defined by § 2 of said chapter. From an examination of the record it appears that the trial court charged the jury with reference to said § 2, and sentenced the defendant for a term of one to two years, as provided by said section.

It should be borne in mind that said chapter 115 repealed §§ 9849-9867 of the Compiled Laws of 1913. Section 9849 defines arson as "The wilful and...