State v. Carroll

• Decision Date: 30 August 1963
• Docket Number: Cr. 311
• Citation: 123 N.W.2d 659
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Larry Duane CARROLL, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 659

123 N.W.2d 659

STATE of North Dakota, Plaintiff and Respondent, v. Larry Duane CARROLL, Defendant and Appellant.

Cr. 311.

Supreme Court of North Dakota.

Aug. 30, 1963.

Rehearing Denied Oct. 18, 1963.

Syllabus by the Court.

1. An order suspending the imposition of sentence pursuant to Section 12-53-13, North Dakota Century Code, is neither an order nor a final judgment of conviction from which an appeal may be taken.

2. 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 its determination with respect to such sufficiency will not be disturbed unless there appears to have been abuse of that discretion.

3. This court will not substitute its opinion for the verdict of the jury, nor can it find that the trial court has abused its discretion in sustaining the jury's verdict of guilty in an arson case where the jury could reasonably have found from the evidence: that there was a burning of a warehouse; that the fire was willfully and maliciously set and not an accident; that the potatoes contained in the warehouse were over-insured, indicating a motive which the record does not disclose was held by anyone other than the defendant; that the defendant was the last person at the warehouse preceding the discovery of the fire therein and thus had an opportunity to set it; and that the defendant had evidenced a willingness to have the warehouse burned.

4. Where the trial court in a criminal action submitted written jury instructions to counsel for both sides and requested that counsel make their suggestions for corrections or additions thereto before the instructions were given by the court to the jury; where there is nothing to indicate that counsel did not have a reasonable opportunity to examine the instructions; and where counsel for the defendant, after making one suggesting which was accepted by the court and made a part of the instructions, thereafter stated that he had no other objections, such statement constitutes a waiver of further objections.

5. It was not error for the trial court to admit opinion testimony of an expert witness as to the cause or origin of a fire: where the witness was qualified as an expert in the field of investigating fires; where the witness had made a careful examination of the premises of the fire involved in the prosecution; and where his experience, gained from formal training and from investigating many fires, caused his opinion to be of appreciable help to the jury in a field in which the ordinary juror needs help.

Lyche, Lyche & Camrud, Grand Forks, for defendant and appellant.

Helgi Johanneson, Atty. Gen., Bismarck, and James H. O'Keefe, State's Atty., Grafton, for plaintiff and respondent.

ERICKSTAD, Judge.

The defendant, Larry Duane Carroll, was found by a Walsh County jury on July 13, 1961, to be guilty of the crime of arson of a building other than a dwelling, contrary to Section 12-34-02, North Dakota Century Code.

On behalf of the defendant, his attorney, James E. Leo, filed on October 16, 1961, with the Clerk of the District Court of Walsh County a motion for a new trial, alleging that the verdict was contrary to law and clearly against the evidence. This motion was duly heard, and an order denying same was entered on January 20, 1962.

Thereafter the defendant secured the services of the law firm of Lyche, Lyche & Camrud, who filed with the aforesaid clerk of court on February 8, 1962, a notice of motion for a vacation of the verdict, for a new trial, and for a delay in entering the judgment and sentence.

After a hearing of the said motion, the District Court, on March 8, 1962, entered an order denying the motion.

Notice of appeal, filed with the clerk of the said court on March 14, 1962, states that the appeal to the Supreme Court is from the whole of that certain final judgment of conviction and sentence rendered by the said court and entered and docketed on the 14th day of March, 1962, and that the appeal is also from the whole of that certain order made and entered in said action by the said court, dated the 20th day of January, 1962, which denied a motion for new trial, and that the appeal is from a similar order dated March 8, 1962.

The judgment appealed from is actually an order, suspending the imposition of sentence for a period of five years, pursuant to Chapter 12-53, North Dakota Century Code.

An examination of the order indicates that the trial court invoked Section 12-53-13 of the North Dakota Century Code. The said section reads as follows '12-53-13. Imposition of sentence suspended--When authorized.--When a defendant has been found guilty of a crime, whether or not for the first time, excepting the crimes mentioned in section 12-53-02, the court having jurisdiction thereof, including a county justice, upon application or its own motion may, in its discretion, suspend the imposing of the sentence and may direct that such suspension continue for a definite period of time, not exceeding five years, and upon such terms and conditions as it may determine.'

In this connection, an annotation in American Law Reports has this to say:

'It is ordinarily required that a judgment or order, to be appealable, must be final. In this connection it is said generally in 2 Am.Jur. 934, Appeal and Error, Sec. 140: 'In criminal prosecutions the same policy with respect to review prevails as in other cases, and as a general rule, a judgment, to be reviewable, must be final. With reference to what satisfies the requirement of finality, it may be stated generally that no judgment will be regarded as final unless sentence is pronounced.'

'In the more recent decisions discussing the question under annotation a distinction is made between the suspension of the imposition of sentence and the suspension of the execution of sentence, the cases generally holding that if the imposition of sentence is suspended there is no sentence, and hence no final judgment from which an appeal may be taken, while on the other hand, if the sentence is imposed but the execution thereof is suspended, the suspension of the execution of sentence does not affect the finality of the sentence or judgment, and the defendant may appeal. * * *' 126 A.L.R. 1210.

The note further states:

'Ordinarily, an order suspending the imposition of sentence is not regarded as a final decision from which an appeal will lie. Thus, where the appellate jurisdiction of the Federal Circuit Court of Appeals is generally limited to a review of 'final decisions' of the district courts, it was held, in Birnbaum v. United States (CCA 4th) [107 F.2d 885, 126 A.L.R. 1207] * * * that 'an order suspending (the imposition of) sentence and releasing a prisoner on probation is in no sense a final decision. It is the mere deferring of sentence, which in a criminal case is the final judgment.' It was argued that an order suspending the imposition of sentence and admitting one convicted of crime to probation was in effect a sentence disposing of the case, but the court replied that in such cases the court can pronounce sentence at any time during the period of probation, and hence such order of suspension was not a final order. The court added that if the defendant objected to probation and desired a sentence from which he could appeal, all he had to do was to ask that sentence be imposed.' 126 A.L.R. 1211.

Our legislature has specifically designated from what a defendant in a criminal case may appeal:

'From what defendant may appeal.--An appeal may be taken by the defendant from:

'1. A final judgment of conviction;

'2. An order refusing a motion in arrest of judgment;

'3. An order denying a motion for a new trial; or

'4. An order made after judgment affecting any substantial right of the party.'

Sec. 29-28-06, N.D.C.C.

Where the provisions of our Code relating to the suspension of the imposition of sentence have been resorted to, the trial court could, in its discretion, set aside the verdict of guilty and could, further, dismiss the information against the defendant; and, if this were done, a final judgment of conviction would never be entered.

'Records on discharge from probation.--Every defendant who has fulfilled the conditions of his probation for the entire period thereof, or who shall have been discharged from probation prior to the termination of the period thereof, may at any time be permitted in the discretion of the court to withdraw his plea of guilty, the court may in its discretion set aside the verdict of guilty; and in either case, the court may dismiss the information or indictment against such defendant, who shall then be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted. The clerk of the district court shall file all papers, including the findings and final orders in proceedings had hereunder and shall note the date of filing on the papers. The records and papers shall be subject to examination by said clerk, the judges of the court, the juvenile commissioner, and the state's attorney. Others may examine such records and papers only upon the written order of one of the district judges.' Sec. 12-53-18, N.D.C.C.

In the instant case no sentence has been imposed, and, under the provisions of our law relating to the suspension of imposition of sentence, it is possible that a sentence may never be imposed.

In a California case decided in 1939, it was held that an order granting probation without the imposition of judgment and sentence was not an appealable order. People v. Smith, 36 Cal.App.2d 361, 97 P.2d 867.

In another California case decided in 1941, in a special concurring opinion, it was said:

'* * * It seems well settled, however, that where a defendant is ordered on probation by suspending the imposition of sentence, no appeal lies in the absence of a statute expressly authorizing such an appeal; but on the other hand, where a defendant is...