State v. Bossart

• Citation: 241 N.W. 78,62 N.D. 11
• Decision Date: 20 February 1932
• Docket Number: 82,Cr
• Court: United States State Supreme Court of North Dakota

241 N.W. 78

62 N.D. 11

STATE OF NORTH DAKOTA, Respondent, v. FRED BOSSART and Henry Bossart, Appellants. and STATE OF NORTH DAKOTA, Respondent, v. JOHN ELLINGSON, Appellant

No. 82, Cr

Supreme Court of North Dakota

February 20, 1932

Appeal from the District Court of Barnes County, Swenson J.

Reversed and remanded.

L T. Van Slyke and F. J. Graham, for appellants.

The omission of a material averment in an indictment cannot be supplied by instructions, or by proof or by the finding of the jury of a fact not alleged. 31 C.J. 663.

The indictment or information must state specifically all the facts and circumstances necessary to constitute the offense charged. 31 C.J. 693.

The affidavits on behalf of the state where change of venue is requested do not make out a prima facie showing. State v Potter, 60 N.D. 183, 238 N.W. 650.

In absence of the corpus delicti, the presumption from possession of articles claimed to have been stolen will not authorize a conviction. State v. Beard (S.D.) 147 N.W. 69; Sanders v. State (Ala.) 28 L.R.A.(N.S.) 536, 52 So. 417.

In a prosecution for larceny, the ownership of the goods must be alleged and proven as alleged. State v. Loomis (Iowa) 105 N.W. 397; Kellum v. State (Tex.) 200 S.W. 843.

State may not introduce evidence of other specific crime. State v. Heaton, 56 N.D. 357, 217 N.W. 531.

To make evidence of other acts available, they must show conspiracy, plan or other quality bearing on act charged. Wehenkel v. State (Neb.) 218 N.W. 421.

Prosecuting attorney's comments on defendant's association with "murderers and thieves" on improperly admitted evidence held prejudicial. State v. Stockton (Minn.) 238 N.W. 307.

Evidence of footprints not connected with defendant is inadmissible. State v. Burch (Iowa) 192 N.W. 297.

Circumstantial evidence, to warrant conviction, must indicate guilt to moral certainty, to be consistent with guilt and inconsistent with innocence. State v. Guffy (S.D.) 210 N.W. 980; State v. Pfeifer (S.D.) 207 N.W. 547.

C. A. Whipple and Geo. W. Thorp, for respondent.

Granting or denying an application duly made for a change of place of trial of an action, on the ground that an impartial trial cannot be had in the county wherein the action is pending, is a matter within the sound discretion of the court to which the application is made, and its rulings will not be disturbed except for an abuse of discretion. State v. Potter, 60 N.D. 183, 233 N.W. 650.

Possession of goods recently stolen, and unexplained, raise a presumption of guilt, and the sufficiency of the explanation by the defendant is for the jury to determine. State v. Rosencrans, 9 N.D. 163, 82 N.W. 422; State v. Ross, 46 N.D. 167, 179 N.W. 993; State v. McCarty, 47 N.D. 523, 182 N.W. 784; State v. Lennick, 47 N.D. 393, 182 N.W. 458; State v. Kingen, 58 N.D. 327, 226 N.W. 505; State v. Johnson, 60 N.D. 56, 232 N.W. 473.

Associations before and after the crime are relevant. Frazer v. State (Ind.) 34 N.E. 817.

It is proper to show collateral facts that might tend to criminate, disgrace or degrade the witness if such other facts tend to weaken his credibility. State v. Kent, 5 N.D. 516, 67 N.W. 1052.

A defendant who takes the witness stand in his own behalf is subject to the same rules of cross-examination as any other witness. Territory v. O'Hare, 1 N.D. 30.

BURKE, J. Christianson, Ch. J., and Birdzell, Nuessle and Burr, JJ., concur.

OPINION

BURKE

On the 3rd day of March, 1931, an information was filed against the defendants, Fred Bossart and Henry Bossart, stating that on the 11th day of January, 1931, within the county of Dickey and state of North Dakota, the above named defendants had committed the crime of grand larceny, committed as follows to wit: That at the said time and place the said defendants did then and there wilfully, unlawfully and feloniously, by means of fraud and stealth, take, steal and carry away certain goods, wares and merchandise, the property of P. R. Jenner, and not the property of said defendants, with the intent then and there had by the defendants to deprive the owner thereof, which said goods, wares and merchandise were of the value of twenty dollars, which are named and described as follows: (description of the goods alleged to have been stolen.) A similar information was filed against John Ellingson charging him with the same offense committed at the same time and place. On stipulation the three defendants were all tried together in one action. On the 4th day of March, 1931, an application was made by the state's attorney for a change of the place of trial of said defendants. The motion for change of place of trial was granted on the 17th day of March, 1931, and the place of trial was changed to Barnes county, where the case was tried before Hon. P. G. Swenson, on the 5th day of June, 1931, and a verdict returned against each of the defendants as follows: "we the jury duly empaneled and sworn to try the above entitled action do find the defendant guilty as charged in the information of the crime of grand larceny." Thereafter and before sentence the defendant moved in arrest of judgment, first, that the information filed alleged the property to be of the value of twenty dollars and in no event could the defendant be found guilty of any greater crime than that of petit larceny. There are other questions raised which will be considered in connection with the admission of testimony. The motion in arrest of judgment was overruled and when asked if they had any legal reason why sentence should not be pronounced, Mr. Graham, for the defendants said: "I do not think I have anything more to say than I have already presented in the motion in arrest of judgment." Each defendant was sentenced to the penitentiary for a period of two years and six months. Thereafter there was a motion for a new trial, which was denied and from the judgment of conviction and sentence the defendants appeal.

Appellants contend, first, that the showing for a change of place of trial was an abuse of discretion; that the statements in the affidavits are merely conclusions and not statements of fact. It is true that there are many conclusions stated in both the affidavits for the motion and those opposing it; but there are also many statements of facts. The affidavit of the state's attorney shows that the prosecution was instituted by the sheriff of the county, who claimed to have found some of the stolen property in the possession of the defendants; that he would be the principal witness. That after the arrest of the defendants and while driving on the highway he shot and killed one of them; that he had previously been very active in searching various premises, attending numerous parties and dances where intoxicating liquors might be found and had become very unpopular; that a certain newspaper, a copy of which was attached to the affidavit, was circulated in Dickey county, referring to the sheriff as facing a first degree murder charge, and in glaring scarehead lines the following phrases were set out: "Mikkelson's ghost rises to torment county court: father of slain boy promises to bring criminal prosecution: sheriff's act not justified by any legal or moral standard say critics." The paper commenting on the robbery, denies the responsibility of the defendants and each of them and of Mikkelson; that the sheriff threatened to shoot one of the Bossarts. The paper further argues the facts vigorously insisting and explaining to the people of this county that the defendants and Mikkelson were not guilty and that the sheriff was wholly to blame in said shooting and quoting from the paper "the conclusion must be that the sheriff being an emotional, irresponsible person -- a sadist in fact -- craving an opportunity to kill, used his weapon without any excuse or provocation. That an official murder has been committed by this official and that he is an unsafe person to carry firearms is apparent. Ever since Crandall became sheriff of Dickey county he has made himself obnoxious to the people; he appears to believe that it is his duty to interfere in social matters, to snoop, to use force in an alleged moral crusade and as a consequence has made innumerable enemies. That article refers to a gun play in which the sheriff was involved at Forbes and another altercation the sheriff had and there are many other instances, too numerous to mention, showing that Crandall is an unbalanced person, unfit to handle firearms or to hold a position as a peace officer. In the language of the street it was 'a perfect crime:' sheriff Crandall took Mikkelson for a ride in approved Chicago style with the inevitable consequences of such a ride."

There are many affidavits alleging the unpopularity of the sheriff, who as the record shows, was the complainant and the principal witness for the state. We are of the opinion that there was no abuse of discretion in granting the motion for change of place of trial.

Appellants are right in their contention that the defendants could only be convicted for petit larceny.

Section 9915, Compiled Laws 1913, reads as follows: "Larceny is divided into two degrees; the first of which is termed grand larceny, the second petit larceny." Section 9916, Compiled Laws 1913, defines each degree as follows: "Grand larceny is larceny committed in either of the following cases:

1. When the property taken is of value exceeding twenty dollars.

2. When such property, although not of value exceeding twenty dollars in value, is taken from the person of another.

Larceny in other cases is petit larceny."

Grand larceny, therefore, is the taking of personal property exceeding twenty dollars in value or the taking of personal property from the person without regard to its value when such...