State v. Bendickson, No. 78.

CourtNorth Dakota Supreme Court
Writing for the CourtBERRY
Citation242 N.W. 693,62 N.D. 201
PartiesSTATE v. BENDICKSON.
Docket NumberNo. 78.
Decision Date19 May 1932

62 N.D. 201
242 N.W. 693

STATE
v.
BENDICKSON.

No. 78.

Supreme Court of North Dakota.

May 19, 1932.



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.


BERRY, District Judge.

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...

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9 practice notes
  • N.D. State Bd. of Higher Educ. v. Jaeger, No. 20120112.
    • United States
    • North Dakota Supreme Court
    • April 3, 2012
    ...it could prevent the Legislative [815 N.W.2d 224]Assembly, when convened, from voting upon the same measure.” Anderson, 62 N.D. at 232, 242 N.W. at 693 (quoting State ex rel. Carson v. Kozer, 126 Or. 641, 270 P. 513, 515 (1928)). [¶ 31] Construing the referendum powers under the similar pro......
  • State v. Plath, No. 21582
    • United States
    • United States State Supreme Court of South Carolina
    • October 7, 1981
    ...heinous and unspeakable forms of crime." State v. Altwatter, 29 Idaho 107, 157 P. 256, at 257 (1916). See also State v. Bendickson, 62 N.D. 201, 242 N.W. 693 (1939); 121 A.L.R. 1090 6. Arnold argues his indictment should have been quashed on the ground the State's grant of immunity to ......
  • State v. Simpson, Cr. 241
    • United States
    • United States State Supreme Court of North Dakota
    • December 13, 1951
    ...certainty, it is not a fatal defect that the indictment gives the offense no name, or an erroneous name.' Syllabus 1, State v. Bendickson, 62 N.D. 201, 242 N.W. 693. The information in this case charged that Margaret Simpson received persons into her place at 228 3rd St. S.W. in the City of......
  • State v. Schnell, No. 7822.
    • United States
    • Montana United States State Supreme Court of Montana
    • February 25, 1939
    ...49 Idaho 514, 290 P. 387;Hixon v. State, 35 Ga.App. 392, 133 S.E. 285;Strum v. State, 168 Ark. 1012, 272 S.W. 359;State v. Bendickson, 62 N.D. 201, 242 N.W. 693;People v. Eppinger, 105 Cal. 36, 38 P. 538;State v. Gillett, 92 Iowa 527, 61 N.W. 169;State v. Howard, 66 Minn. 309, 68 N.W. 1096,......
  • Request a trial to view additional results
9 cases
  • N.D. State Bd. of Higher Educ. v. Jaeger, No. 20120112.
    • United States
    • North Dakota Supreme Court
    • April 3, 2012
    ...it could prevent the Legislative [815 N.W.2d 224]Assembly, when convened, from voting upon the same measure.” Anderson, 62 N.D. at 232, 242 N.W. at 693 (quoting State ex rel. Carson v. Kozer, 126 Or. 641, 270 P. 513, 515 (1928)). [¶ 31] Construing the referendum powers under the similar pro......
  • State v. Plath, No. 21582
    • United States
    • United States State Supreme Court of South Carolina
    • October 7, 1981
    ...heinous and unspeakable forms of crime." State v. Altwatter, 29 Idaho 107, 157 P. 256, at 257 (1916). See also State v. Bendickson, 62 N.D. 201, 242 N.W. 693 (1939); 121 A.L.R. 1090 6. Arnold argues his indictment should have been quashed on the ground the State's grant of immunity to ......
  • State v. Simpson, Cr. 241
    • United States
    • United States State Supreme Court of North Dakota
    • December 13, 1951
    ...certainty, it is not a fatal defect that the indictment gives the offense no name, or an erroneous name.' Syllabus 1, State v. Bendickson, 62 N.D. 201, 242 N.W. 693. The information in this case charged that Margaret Simpson received persons into her place at 228 3rd St. S.W. in the City of......
  • State v. Schnell, No. 7822.
    • United States
    • Montana United States State Supreme Court of Montana
    • February 25, 1939
    ...49 Idaho 514, 290 P. 387;Hixon v. State, 35 Ga.App. 392, 133 S.E. 285;Strum v. State, 168 Ark. 1012, 272 S.W. 359;State v. Bendickson, 62 N.D. 201, 242 N.W. 693;People v. Eppinger, 105 Cal. 36, 38 P. 538;State v. Gillett, 92 Iowa 527, 61 N.W. 169;State v. Howard, 66 Minn. 309, 68 N.W. 1096,......
  • Request a trial to view additional results

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