State v. Cray

• Decision Date: 07 June 1915
• Parties: STATE v. CRAY.
• Court: North Dakota Supreme Court

31 N.D. 67

153 N.W. 425

STATE

v.CRAY.

Supreme Court of North Dakota.

April 29, 1915.

On Rehearing, June 7, 1915.

Syllabus by the Court.

The finding of the jury on a disputed question of fact is binding upon the appellate court, if there is any substantial competent evidence to sustain such finding.

A motion for a new trial on the ground of misconduct of a juror is addressed largely to the sound judicial discretion of the trial court, and the appellate court will not interfere, unless it is shown that such discretion has been abused.

This rule, also, applies to a motion for a new trial on the ground of newly discovered evidence.

In the instant case it is held that this court cannot say that the court abused its discretion in denying a new trial. It is also held that the evidence is sufficient to sustain the verdict.

Appeal from District Court, Williams County; Fisk, Judge.

Ira Cray was convicted of the crime of grand larceny, and appeals. Affirmed.Middaugh, Cuthbert, Smythe & Hunt, of Devils Lake, for appellant. C. C. Converse, State's Atty., and M. V. Boddy, Asst. State's Atty., both of Schafer, for the State.

CHRISTIANSON, J.

The defendant was convicted in the district court of Williams county, upon a change of venue from McKenzie county, of the crime of grand larceny, and sentenced to imprisonment in the state's penitentiary for the term of two years. Thereafter a motion for new trial was made and denied, and this appeal is taken from the judgment and the order denying a new trial.

There are 153 assignments of error, but 148 of these relate to rulings on the admission or rejection of evidence, and are grouped by appellant under five separate classes, viz.: (1) Incompetent, argumentative, and improper rebuttal; (2) irrelevant and immaterial; (3) leading, suggestive, and calling for a conclusion of the witness; (4) assumption of a statement of facts, and no foundation; (5) improper restrictions on cross-examination. It will be observed that the objections indicate that the rulings challenged related to matters largely within the discretion of the trial court. We have carefully examined every one of the assignments, and are unable to find any instance wherein the ruling of the trial court constituted prejudicial error. In fact, on the oral argument it was virtually conceded by appellant's counsel that the rulings of the trial court upon the admission or rejection of evidence would not in themselves entitle defendant to a new trial; but appellant's counsel contended that these matters, when considered with the other matters urged in support of the motion for a new trial, would require that a new trial be granted.

The remaining 6 assignments are based upon the insufficiency of the evidence to sustain the verdict, the alleged misconduct of a juror, named Turner, and newly discovered evidence. These are the only assignments of error worthy of any serious consideration. The testimony shows that on December 31, 1912, one Elbert Payne was the owner of about 397 bushels of flax stored in a shack situated about 20 miles from the town of Riverview, and only a short distance from where the defendant and his brother owned and farmed certain lands in McKenzie county in this state. In the morning of December 31, 1912, a son of one Clark had occasion to go to the shack in question to look for a certain knife which had been left there at some previous time, and when there he observed that the roof of the shack had been broken open and some flax taken out of the shack. He forthwith notified his father, and also Mr. Payne, the owner of the flax, with the result that these parties and another neighbor went up to the shack in question, and found that the roof had been broken open and some of the flax removed. They also found a wagon trail leading to the shack, and they testified positively that they “back-tracked” this trail to the house of the defendant-to the very place in the yard where the wagon started that morning; and they further testified that they thereupon tracked the wagon from the shack all the way to the elevator at Riverview, where the flax was delivered. These witnesses for the state claim that they were able to track this wagon on account of a peculiar mark made by the hoof of one of the horses, by reason of the fact that a piece had been broken out of the hoof. It is conceded that these parties reached the elevator at Riverview shortly after the defendant had unloaded his load of flax, and while the defendant was still at the elevator.

It is likewise conceded that at that time Payne accused the defendant of stealing the flax. The complaining witness also claims that at that time he called the defendant's attention to the defect in the hoof by means of which it is claimed the defendant was tracked, and in this he is corroborated by other witnesses. The defendant denies this, and says that no reference was made to the defective hoof, and he and his witnesses claim that the horses were shod, and that for that reason the mark claimed to have been made could not possibly have been made. The defendant produced several witnesses who testified that the horses were shod. But, on the other hand, as already stated, three witnesses for the state testified positively that they tracked the horses on the day the flax was stolen, first from the place of the defendant to the shack, and next from the shack to the elevator where the grain was sold. These witnesses testify positively that the horses were not shod on that day, and that they noticed the peculiar mark as already stated, and at the elevator observed that the horses were not shod, and noticed the defect in the hoof which caused the mark to be made. There is a square conflict in the testimony as to the condition of the roads on that morning, and the character and quality of the flax. Appellant's counsel, however, contends that the prime question in the case is whether or not the horses were shod on the 31st of December, 1912, and his contention is that upon this question the evidence is insufficient to sustain the verdict. It is true that there is strong evidence on this feature of the case in favor of the defendant; but, on the other hand, there were four witnesses for the state who testified positively that they observed the horses on the day in question and that at that time the horses were not shod.

[1] The question of the credibility of the witnesses and the credence to be given to their testimony was a matter for the jury, and its finding, based upon conflicting evidence, is binding upon this court. The only authority this court has is to review the rulings of the trial court, to ascertain whether or not the defendant has been afforded a fair trial under the laws of this state. He was entitled to have the issues of fact submitted to a jury, and the finding of the jury upon an issue cannot be set aside, if there is any substantial competent testimony in the record to sustain such finding. And there is ample testimony in this case from which the jury could find that the horses of the defendant were not shod on December 31, 1912. This is also true of the other issues of fact involved in the action. The jury believed that the witnesses for the state told the truth upon all disputed issues, and that the defendant and his witnesses did not, and by their verdict have said that they were satisfied beyond a reasonable doubt of defendant's guilt. The trial judge, who saw and heard all the witnesses testify, and had an opportunity to observe their demeanor while testifying, has added his approval to the jury's finding, by denying a motion for a new trial. The findings of the jury and trial court upon this question are binding on this court.

[2] The charge of misconduct of a juror is based solely upon the affidavit of one Jensen. The material part of the affidavit of Jensen is as follows:

“That while he was attending said trial as a spectator as aforesaid he became acquainted with one W. C. Turner, who was one of the regular panel of jurors during said term, and who was one of the jurors who returned the verdict finding the defendant above named guilty of the charge of grand larceny. That after he became acquainted with the said juror Turner as aforesaid, and while said action was being tried, before the same was closed either by the state or by the defendant, and while the defendant above named was submitting testimony in his behalf, affiant and said Turner were sitting in front of the Great Northern Hotel in said city of Williston, conversing, said Turner aforesaid stated to affiant that the defendant above named, Ira Cray, and his witnesses, claimed that the roads in the vicinity of where the flax was claimed to have been stolen were frozen and hard; that he (Turner) knew better; that he knew they were dusty, he having done considerable hauling that fall and winter himself. That there was only one question in the case, and that was, ‘If the defendant can prove that the horses were shod, if he can satisfy us that the horses were shod, and that there wasn't any piece out of the hoof, there wouldn't be anything to the case’ as far as the state was concerned. ‘But I believe in my own mind that Cray is guilty, and if it was left to me he would be found guilty.’ Affiant further says that the same evening, while affiant was passing the Great Northern Hotel, he saw said Turner in conversation with one of the witnesses who appeared for the state, a witness by the name of Unfred, a grain buyer at Riverview, as he testified, and affiant heard said Turner in said conversation use the name of the defendant above named, and knows of his own knowledge that he and the said Unfred were talking concerning the above entitled action; that immediately that said Turner and Unfred saw this affiant they quit talking, Unfred getting up from the seat upon which he and the said Turner had been sitting, and walked away; that affiant then sat down beside said Turner, and at said...