State v. Bendickson, 78.
| Citation | 242 N.W. 693,62 N.D. 201 |
| Decision Date | 19 May 1932 |
| Docket Number | No. 78.,78. |
| Parties | STATE v. BENDICKSON. |
| Court | United States State Supreme Court of North Dakota |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. When the facts, acts, and circumstances are set forth with sufficient certainty, it is not a fatal defect that the indictment gives the offense no name, or an erroneous name.
2. The offense charged is to be determined by the statements of fact in the indictment, and not by the designation given in the caption.
3. When an indictment complies with the statute defining the offense in regard to the allegations of malice and intent, additional descriptive words are deemed surplusage, and may be disregarded.
4. In construing the verdict, its language should be considered in connection with the indictment and charge of the court.
Appeal from District Court, McLean County; Fred Jansonius, Judge.
Selmer Bendickson was convicted of the crime of burning buildings other than dwellings, and he appeals from an order denying his motion in arrest of judgment, and from the judgment.
Affirmed.
McCulloch & McCulloch, of Washburn, and R. L. Fraser, of Garrison, for appellant.
James Morris, Atty. Gen., and G. A. Lindell, State's Atty., of Washburn, for the State.
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 section 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 30, 1931, defendant, Selmer Bendickson, was the owner of a garage, not a parcel of a dwelling house, which was fully insured, if not overinsured, 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 6 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.”
[1][2][3][4][5] 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 $1300.00, 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:
Ҥ 1. Arson. Punishment. Any person who willfully 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 outhouse that is parcel thereof, or belonging to or adjoining thereto, whether the property of himself or of another, with the intent thereby to injury, damage or defraud another, shall be guilty of arson, and upon conviction thereof, be sentenced to the penitentiary for not less than two nor 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 dwellinghouse, 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 section 2 of said chapter. From an examination of the record it appears that the trial court charged the jury with reference to said section 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 sections 9849-9867 of the Compiled Laws of 1913....
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