State v. Bossart

• Citation: 62 N.D. 11,241 N.W. 78
• Decision Date: 20 February 1932
• Docket Number: Cr. No. 82.
• Parties: STATE v. BOSSART et al. SAME v. ELLINGSON.
• Court: North Dakota Supreme Court

62 N.D. 11

241 N.W. 78

STATE

v.BOSSART et al.

SAME

v.ELLINGSON.

Cr. No. 82.

Supreme Court of North Dakota.

Feb. 20, 1932.

Syllabus by the Court.

1. In an application by the state for a change of place of trial of a criminal action, where it appears that the sheriff is the complaining witness and the principal witness for the state, and where it further appears from the facts stated in affidavits that a newspaper, published and circulated in the county in which the crime is alleged to have been committed, publishing purported accounts of the arrest of the defendants by said sheriff, charging the sheriff with murder and other crimes, claiming that the defendants in the criminal action were not guilty of the offense, arguing the facts and insisting and explaining to the people of the county that the defendants were not guilty, and that the sheriff was wholly to blame, and where it appears further that the people were taking sides for and against the sheriff, and for and against the defendants, there was no abuse of discretion in the trial court changing the place of trial.

2. Under section 9913, Compiled Laws 1913, and section 9916, Compiled Laws 1913, grand larceny is the taking of personal property, accompanied by fraud and stealth, and with intent to deprive another thereof, when such property exceeds $20 in value, or when the personal property is so taken, from the person of another, without regard to its value. If the property so taken is not taken from the person or when it is not of a greater value than $20, it is petit larceny.

3. The caption or formal part of an indictment or information need not state or describe the offense charged, and, if it does so, any misstatement therein or variance from the indictment proper will be immaterial. In the instant case it is stated in the caption of the information that the defendants committed the crime of grand larceny, but in the charging part of the information it alleges that the goods stolen were of the value of $20, and therefore it only charges petit larceny.

4. In the instant case the verdict returned, namely: “We the jury find the defendants guilty as charged in the information of the crime of grand larceny,” must be construed to be a verdict for petit larceny, as the information charged only petit larceny and the defendants could not be sentenced for any higher degree of crime than petit larceny.

5. The property found in the possession of the defendants must be identified and shown beyond a reasonable doubt to be the property stolen, but identity need not be direct or absolute, but may be proven by circumstantial evidence.

6. A witness may be questioned on cross-examination as to matters collateral to the issue for the purpose of testing his credibility subject to his constitutional privilege to refuse to answer any question, the answer to which will tend to incriminate him, but the interrogatories should not simply suggest inference, but should be so framed as to permit the witness to admit or deny the act itself.

7. In the instant case there was no error in overruling defendants' motion for a directed verdict, as the information charged the crime of petit larceny and the evidence sustains such charge, but since an information charging petit larceny only cannot support a verdict for grand larceny, the motion to vacate and set aside the judgment and for a new trial should have been granted.

Appeal from District Court, Barnes County; P. G. Swenson, Judge.

Fred Bossart, Henry Bossart, and John Ellingson were convicted of grand larceny, and they appeal.

Judgment reversed, and a new trial ordered.

F. J. Graham, of Ellendale, and L. T. Van Slyke, of Aberdeen, S. D., for appellants.

C. A. Whipple, of Ellendale, and Geo. W. Thorp, of Fargo, for the State.

BURKE, J.

On the 3d 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 willfully, 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 $20, 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 $20 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.

[1] 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 scare head 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 saddist 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.

[2][3] 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.”

[4][5][6] Grand larceny, therefore, is the...