State v. Braathen

• Decision Date: 31 May 1950
• Docket Number: No. 223,223
• Citation: 43 N.W.2d 202,77 N.D. 309
• Parties: STATE v. BRAATHEN.
• Court: North Dakota Supreme Court

Page 202

43 N.W.2d 202

77 N.D. 309

STATE v. BRAATHEN.

No. 223.

Supreme Court of North Dakota.

May 31, 1950.

Rehearing Denied June 28, 1950.

Syllabus by the Court.

1. Section 12-0401, RCND 1943 expressly permits conviction of an attempt to commit a crime where it appears on the trial that the crime has been consummated, unless the court discharges the jury and directs prosecution for the completed crime, and the fact that the information sets forth that the attempt charged therein is a violation of Section 12-3406, RCND 1943 describing specific penalties for those attempts falling within its terms does not render this rule inapplicable.

2. To constitute the act of burning contemplated by Section 12-3401, RCND 1943 defining the crime of arson, it is not necessary that the building should be consumed or materially injured. It is sufficient if the fire is actually communicated to any part thereof.

3. Where a new trial has been granted upon specific grounds and additional grounds have been set forth in the motion for new trial, the ultimate question is the correctness of the order, and not the reason given for it. If any ground properly specified in the defendant's motion is sufficient, the order must be sustained.

4. In passing upon a motion for a new trial based on the insufficiency of the evidence, the trial court is clothed with a wide discretion, and his determination with respect to such sufficiency will not be disturbed unless there appears to have been abuse of that discretion.

5. The evidence is examined and is held to be sufficient to warrant the jury in finding the defendant guilty as charged in the information.

6. In order to be admissible as evidence in a criminal action a confession must be freely and voluntarily made but an admission not amounting to a confession need not be proved to have been freely and voluntarily made in order to be admissible.

7. Evidence bearing upon whether an admission was made voluntarily or involuntarily may be considered by the jury in determining the weight to be given to the admission.

8. For reasons stated in the opinion, certain statements of the defendant in the nature of admissions or confessions were properly found by the court to have been freely and voluntarily made.

9. The fact that a defendant has made a statement in the nature of an admission or confession while under arrest does not render his statement involuntary, but the fact of arrest may be considered by the court and jury in determining whether the statement was freely given.

10. Where a criminal case against a defendant who has been released on bail is called for trial and the state applies orally in open court for a continuance on the ground of illenss of a material witness, and defendant's counsel does not resist the application, but later resists an application on the part of the state to have the jury recalled in order that the case might be tried, and on being asked if he was demanding a trial, defendant's counsel states that he will leave the matter entirely in the hands of the court, the defendant is not entitled to prevail upon the motion for dismissal for lack of prosecution or to predicate error upon the fact that the application for continuance was not in writing.

11. Where a witness has made memoranda concerning the facts pertaining to an event under circumstances that show he had knowledge of the facts thus recorded and a clear recollection of them at the time the memoranda were made, he may be permitted while on the witness stand to refresh his recollection by referring to the memoranda and then testify from his recollection as thus refreshed.

12. Where a witness is permitted to use a memorandum on direct examination, he may be cross-examined with reference to it and the cross-examiner must be permitted to inspect the memorandum to which the witness has referred.

13. Where a witness under cross-examination was in possession of notes to which he had not previously referred and the notes were part of a file in the possession of the witness who was given permission by the cross-examiner to refer to the notes and reference thereto was made, the court did not err in refusing the cross-examiner the right to inspect the file.

14. An attorney has the right to argue to the jury the credibility of witnesses as long as he confines his argument to the evidence and inferences that fairly arise therefrom, but he has no right to go beyond the record and state extraneous facts either in support of or in derogation of credibility.

15. In order for a defendant in a criminal case to avail himself upon appeal, of error resulting from improper argument of a state's attorney to the jury, he must first have seasonably objected thereto in the lower court and obtained a ruling from the trial court thereon and request the court to take action by reprimand to counsel, instructions to the jury, or other suitable action tending to minimize or relieve the effect of the improper remarks upon the jury.

16. The declaration by the trial court of a mistrial is a stringent step to be taken by the court upon the development of some fact or occurrence that renders further proceedings nugatory.

17. Where a motion for mistrial is made by the defendant on the ground that improper statements were made by the state's attorney in the course of his argument to the jury, and the defendant requested no action by the court to minimize or relieve the effect of the remarks upon the jury, the denial of the motion for mistrial was proper.

18. Following State v. Maresch, 75 N.D. 229, 27 N.W.2d 1, it is held that it was not error for the trial court to refuse to give the jury a cautionary instruction to the effect that greater care should be used in weighing the testimony of police officers because of their tendency in procuring and stating evidence against the defendant.

19. Where there is sufficient direct evidence to sustain a conviction in a criminal case, it is not error for the court to refuse to instruct on circumstantial evidence.

Mr. Wallace E. Warner, Attorney General, George Longmire, State's Attorney, Philip R. Bangs, Assistant State's Attorney, Grand Forks, for appellant.

Day, Lundberg, Stokes, Vaaler & Gillig, of Grand Forks, for respondent.

MORRIS, Judge.

This is a criminal action by the State of North Dakota upon an information charging that the defendant 'did commit the crime of Attempt to Burn a Building, committed as follows, to wit: That at the said time and place the said Odd Braathen did and there wilfully, unlawfully, feloniously and maliciously attempt to set fire to and burn a building, namely the dwelling house located at 520-North Fourth Street, in Grand Forks, North Dakota, in violation of Section 12-3406 of the Revised Code of North Dakota for 1943.' Section 12-3406, RCND 1943 upon which the charge in the information is based provides that: 'Every person who wilfully and maliciously attempts to set fire to, or attempts to burn or to aid, counsel, or procure the burning of, any of the buildings or property specified in this chapter, or who commits any act preliminary thereto or in furtherance thereof, shall be punished by imprisonment in the penitentiary for not less than one year nor more than two years, or by a fine of not more than one thousand dollars.' Section 12-3401, RCND 1943 provides in part that: 'Every 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, * * * whether the property of himself or of another, with intent to injure, damage, or defraud another, is guilty of arson * * *.'

The defendant pled not guilty and was tried before a jury who returned a verdict of 'guilty of the crime of attempt to burn a building, as charged in the information.' The defendant made a motion for a new trial and as the first ground therefor alleged that the verdict was contrary to law for the reason that the defendant was charged with attempt and the facts proved by the State at the trial proved a completed act of setting fire to a building. The trial court agreed with the defendant upon this point and granted a new trial on the ground that the defendant was improperly charged under Section 12-3406. The State appeals from the order granting a new trial.

A fire occurred in the dwelling house of the defendant located at 520 North Fourth Street in Grand Forks, on August 6, 1947, which was extinguished by the Grand Forks Fire Department before it had consumed any major portion of the building. The State established by the testimony of witnesses and by protographs introduced in evidence that there was a burning and charring of the wood of some of the interior before the fire was extinguished. The trial court determined that this was sufficient to constitute a burning, and therefore, the completed crime of arson. In this, the trial court was correct. In State v. Mutschler, 55 N.D. 120, 212 N.W. 832, this court quoted from the annotation in 1 A.L.R. 1166 as follows: 'To constitute the burning which is essential to the crime of arson, it is not necessary that the building should be consumed or materially injured. It is sufficient if the fire is actually communicated to any part thereof, however small.' This statement is supported by cases cited in the annotation referred to. Other cases of similar import are cited in these annotations: L.R.A.1916D, 1299, 101 Am.St.Rep. 23. It is clear from the evidence in this case that the burning resulting from the fire proceeded to the point where the crime of arson was complete, if the fire was of incendiary origin.

The information states that the defendant did willfully and maliciously attempt to set fire to and burn a dwelling in violation of Section 12-3406, RCND 1943. Thus it charges an attempt to commit the crime described and defined in Section 12-3401 as arson. It is clear from the evidence that the fire progressed beyond an attempt and resulted...