State v. Carter

• Court: North Dakota Supreme Court
• Writing for the Court: JOHNSON
• Citation: State v. Carter, 50 N.D. 270, 195 N.W. 567 (N.D. 1923)
• Decision Date: 26 October 1923
• Parties: STATE v. CARTER.

50 N.D. 270

195 N.W. 567

STATE

v.CARTER.

Supreme Court of North Dakota.

Oct. 26, 1923.

Syllabus by the Court.

To support a verdict of murder in the second degree, under the statutes, the state must prove beyond a reasonable doubt that the homicide was committed with malice, express or implied. Deliberation or premeditation are not necessary ingredients in the crime of murder in the second degree. Certain expressions in State v. Mueller, 40 N. D. 35, 54, 168 N. W. 66, explained.

The fact that the killing is malicious in law does not necessarily imply the presence of willfulness, deliberation, or premeditation.

Mere defectiveness or inaccuracy in the charge is not necessarily sufficient to justify a reversal. It must be made to appear that the court misstated a rule of law in a substantial particular, and it must appear, from an examination of the entire charge, that the misstatement was calculated to mislead the jury in arriving at a verdict upon some question submitted to it. An instruction which states the law inaccurately or even incorrectly in part may be cured by other portions of the charge which correctly state the law. Likewise, an instruction not fully stating the law may be cured by a subsequent instruction which completes it. Theoretical or technical error, or error which for other reasons is not calculated to lead the jury to return an erroneous verdict, does not constitute a ground for reversal.

Evidence having been introduced by the state from which the jury would have been justified, as a matter of law, in finding the defendant guilty of murder in the first degree, it was proper to instruct the jury fully as to that crime.

The mere fact that an instruction is not given in the language of the statute is not ground for reversal, when the instruction states the law applicable to the facts with substantial accuracy, and it does not appear that it was in fact prejudicial.

It is not error to refuse defendant's request for instructions, when there is no testimony in the case to which the requested charge is applicable.

Certain instructions examined, and, for reasons stated in the opinion, held to state the law correctly.

When justified by the evidence, an instruction that the flight of a person immediately after the commission of a crime is a circumstance that may be considered in determining the probability of guilt or innocence is proper and correctly states the law.

A peace officer has the legal right to use force reasonably necessary to eject from a public street a person who insists on remaining therein, notwithstanding an ordinance of the city or a state statute which makes his presence, under the circumstances, a misdemeanor.

It is not error to refuse to give instructions requested by the defendant, when the court, in other parts of the charge, substantially covers the matters dealt with in the requested instructions.

For reasons stated in the opinion, it is held, that the court did not abuse its discretion in denying defendant's motion for a new trial.

Appeal from District Court, Williams County; Jno. C. Lowe, Judge.

Harry W. Carter was convicted of murder in the second degree, and he appeals. Affirmed.E. R. Sinkler, of Minot, for appellant.

R. E. Swendseid, State's Atty., and F. W. Wyckoff, Sp. Asst. State's Atty., both of Stanley, for the State.

JOHNSON, J.

The defendant and appellant was convicted of murder in the second degree in the district court of Williams county. He was informed against in Mountrail county, but, on application for a change of venue by him, the case was transferred to Williams county. He appeals from the judgment and from an order denying a motion for a new trial.

The appellant makes three principal contentions, any one of which, if sustained, necessitates a new trial. The grounds of error, in general, are: First, that the evidence is insufficient to support a verdict of murder in the second degree, there being, it is alleged, no evidence of a premeditated design to effect death or of malice, express or implied, existing at the time of the homicide; second, that the court misdirected the jury in a manner in fact prejudicial to the defendant, and also erroneously refused to give requested instructions; and, third, that the trial court erroneously denied defendant's motion for a new trial upon the ground of newly discovered evidence.

There is testimony in the record tending to show the following facts: About midnight on the 18th of August, 1921, one C. L. Madison was shot, death resulting within an hour. Deceased was at that time on the police force of the city of Stanley. The defendant, for some time prior to the shooting, had been in the Commercial Hotel in a somewhat intoxicated condition; he had been using profane language, pushing on the doors of the rooms and trying to get into some of them and, in a rather boisterous and noisy manner, insisting that he had a right to be there, notwithstanding the fact that he did not have a room at the hotel. One of the girls at the desk ordered him to leave the hotel, but he refused. She thereupon informed him that she would call the police, whereupon he stated, in substance, that she could call all the marshals or police she desired and they could not “hand” him anything; that he did not “give a damn for all your policemen.” The girl then went out, and Madison, the deceased, came into the hotel. Upon his coming into the room where the defendant was, the defendant made “a hurried exit” down the back stairs. The deceased followed defendant down the back stairs, came back a few moments later, and obtained a description of the man who had been making the disturbance in the hotel. Upon receiving the description, the deceased went out and a very short time afterwards two shots, with a few minutes intervening, were heard, the second shot resulting in the death of the officer. The marshal did not have a warrant for the arrest of the defendant.

The evidence further shows that the defendant, at the time of the shooting, knew that the deceased was a police officer and knew that he had been sent for because of the disturbance made by the defendant in the hotel. The testimony further shows that there was scuffling out on the street, but beyond that part of the street which was illumined by one lamp, which was lighted directly in front of the hotel building. The sound of blows was heard, and these blows seemed to indicate that somebody was being hit on the head. Then a shot was heard, and this shot was fired in the air and was from the gun which was in the possession of the policeman, and for the purpose of reducing the defendant to submission, either in order to move on, or to go with the policeman for the purpose of arrest. Bystanders also heard the defendant say that he had “had enough.” The deceased stated, a few minutes before he died, that he was seeking to arrest the defendant; that the defendant resisted; that deceased fired in the air in order to scare the defendant; and that, when the defendant was being let up, he reached with his arm around the waist of the policeman, took the gun from him, and shot him point blank in the abdomen, the bullet passing through the body.

It appears that the policeman had the defendant down and probably was striking him at the time when the defendant said he had had enough, whereupon deceased let the defendant up. The evidence shows that the defendant immediately ran away from the scene of the shooting and was seen the next morning near a haystack not far from the place where the homicide occurred, and was afterwards found, by the citizens of Stanley, hidden in a grain shock. There was some blood on his person and in his hair and some wounds in the scalp, recently inflicted. The deceased, Madison, was bruised about the head, indicating that he had recently received blows thereon. While the defendant was confined in jail, he had nearly succeeded in sawing through the bars of his cell when discovered by the local officers. There is testimony to the effect that when the deceased located the defendant out in the street, after obtaining the description of him in the hotel, he said to the defendant, “Come with me,” to which the defendant replied that he would not come with him “or any other policeman.” Immediately thereafter the scuffle started. The state introduced an ordinance prohibiting the presence of intoxicated persons on the streets of Stanley. One witness for the state testified that the deceased told him, immediately after the shooting, that he was not trying to arrest defendant, but was driving him off the street. The dying declaration of deceased was to the effect that he was trying to arrest defendant, and that defendant resisted arrest.

[1] Section 9462, C. L. 1913, declares homicide to be murder in the following cases:

“1. When perpetrated without authority of law, and with a premeditated design to effect the death of the person killed or of any other human being.

2. When perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.

3. When perpetrated without any design to effect death by a person engaged in the commission of any felony.”

Section 9468 divides murder into two degrees, and section 9469 defines murder in the first and second degrees as follows:

“Every murder perpetrated by means of poison, or by lying in wait, or by torture, or by other willful, deliberate or premeditated killing, or in committing or attempting to commit any sodomy, rape, mayhem, arson, robbery, or burglary, shall be deemed murder in the first degree; all other kinds of murder shall be deemed murder in the second degree.”

Does the evidence support a verdict of second degree murder? It seems clear that malice, express or implied, is essential to the crime of murder in the second degree. In other jurisdictions under statutes dividing murder into degrees...