State v. Gates
| Decision Date | 02 May 1925 |
| Docket Number | 4873 |
| Citation | 204 N.W. 350,52 N.D. 659 |
| Court | North Dakota Supreme Court |
Rehearing denied May 25, 1925.
Appeal from the District Court of Ramsey County, Buttz, J.
Defendant appeals from an order denying motion for a new trial.
Affirmed.
Cuthbert & Adamson, for appellant.
"Leading questions are largely in the discretion of the trial court as the resort to leading questions by the state was unwarranted and prejudicial to the substantial rights of the defendant." See State v. Hazelett, 14 N.D. 490.
"Where the charge in a criminal case contains in one part a correct legal proposition and in another an incorrect and conflicting proposition upon the same subject, the subject referred to being material to conviction, it cannot be said that the error is avoided, for it is impossible to know upon which proposition the jury depended." Clair v. People (Colo.) 10 P. 801.
"The plain intent of the statute is that if the defendant in a criminal action does not take the witness stand in his own behalf, that fact shall be ignored wholly by the prosecuting attorney and the court." State v. Pearce (Minn.) 57 N.W. 655.
"Neither the prosecuting attorney nor the judge has the right to allude to the fact that a person has not availed himself of this statute, and it would be the duty of the court promptly to interrupt a prosecuting counsel who should so far forget himself and the duties of his office as to make use of the fact in any way to the prejudice of a person on trial." Ruloff v. People, 45 N.Y. 213.
H. W Swenson, State's Attorney, and Geo. F. Shafer, Attorney General, for respondent.
"The subject of cross-examination is largely within the sound judicial discretion of the trial court and its rulings unless it clearly appears that there has been a manifest abuse of such discretion, will not ordinarily be reversed by the appellate court." State v. Tolley, 23 N.D. 284; Schowebel v. Fugina, 14 N.D. 375; Mathews v. Hanson 129 N.W. 1116.
"It is, of course, elementary that the instructions must be considered as a whole and when this is done, we find nothing in the instructions given by the court prejudicial to the rights of the defendants." State v. Tolley, 23 N.D. 284.
"The statute does not prohibit the court from mentioning to the jury the fact that the defendant has a right not to become a witness in the case, and it seems that no possible prejudice could follow from that fact when they were instructed that such fact should not be considered by them in their deliberation." State v. Wisnewski, 13 N.D. 649.
On the 10th of June, 1924, federal prohibition agents and representatives of the sheriff's office, searched certain premises in Devils Lake and found intoxicating liquor thereon. As a result of that search the defendant was informed against, prosecuted and convicted of possessing intoxicating liquor in violation of law.
The grounds of error are, in general, that the evidence of possession is insufficient, that is, defendant contends that he did not occupy the room in which the liquor was found; that the court erred in giving and refusing instructions; and that some evidence was erroneously admitted, and some improperly excluded.
Gates, at the time of the search was living in a rooming house operated by his mother-in-law, Mrs. Hunter. The Hunters also operated a restaurant down town. Whether the room in which the liquor was found was that occupied by the defendant constitutes the only seriously contested question of fact presented in the record.
The State relies on the testimony of the officers who made the search. Armed with a search warrant, they proceeded to the rooming house of the Hunters, where they knew Gates was living; one officer entered the house through the back door, while his associates came in by the front entrance. Gates was present when they entered and searched a downstairs bedroom, adjoining the kitchen. In a clothes closet, connected with the room, they found a suit case containing one gallon can full of liquor and two empty gallon cans; in the same room they found two other gallon containers. One container partly filled with liquor, was in the closet. The defendant said to the officers, in substance, according to their testimony, that the room in which the liquor and the containers were found was occupied by him, or was his room; when he discovered a purpose to take the bag, he protested, saying that it was a good bag, and he would rather not lose it. The officers saw feminine apparel in the closet. One of the officers testified that the defendant stated "that is my bag," or words to that effect. The testimony tends to show that Gates was willing to part with the liquor, provided the officers did not arrest him. The State's witnesses, after testifying that they had tasted and drunk intoxicating liquors, sampled the contents of the containers while on the witness stand, said that the liquid was alcohol, or grain alcohol, and was intoxicating. In view of this testimony, and in the absence of evidence tending to show anything to the contrary, it was not necessary for the State to prove that the liquor was fit for beverage purposes, or contained more than one half of one per cent of alcohol. Sess. Laws 1923, § 1, chap. 268; State v. Schuck, 51 N.D. 875, 201 N.W. 342; Strada v. United States (C. C. A. 9th) 281 F. 143.
The defendant did not testify. His mother-in-law, Mrs. Hunter, was the only witness who testified in his behalf. The substance of her testimony is that Gates did not occupy the room in which the liquor was found; that he occupied a room upstairs; that on or before the 6th of June, four days before the raid that yielded the evidence on which defendant was convicted, a stranger, Abe Ballanger, by name, asked for accommodations, and was assigned the room searched by the officers. She testifies that this roomer was seldom in the house during the time intervening the 6th of June and the search; that he was out at night, and that she saw very little of him. She says that she entered the names of roomers in a note book kept for that purpose; it was not produced at the trial. Ballanger paid in advance, and she never saw him after the raid. He seems to have disappeared completely from view, and, according to Mrs. Hunter, left as evidence of his sojourn, the incriminating liquor, the containers, and a brown leather Gladstone bag.
It is of course self-evident that it was a question of fact for the jury whether the room or the bag in which the intoxicating liquor was found, belonged to or was under the control of the defendant; that both the testimony of the State's witnesses and the explanation of Mrs. Hunter could not very well be true. The jury accepted the version of the officers who made the raid. Obviously, the jury could not arrive at a verdict without accepting one version and rejecting the other. There is abundant evidence to support the finding that the bag belonged to defendant Gates; and that the room in which the bag and the incriminating evidence were found, was occupied by him and his wife. In short, the State's evidence sufficiently shows that the intoxicating liquor was under the control and in the possession of the defendant. Similar or analogous defenses, making a conflict in the evidence, were interposed in some of the cases cited by this court in State v. Schuck, 51 N.D. 875, 201 N.W. 342. Clearly the assignment founded on the insufficiency of the evidence to support a finding that the defendant unlawfully kept intoxicating liquors upon premises in his possession or under his control, is wholly without merit.
In considering the alleged errors we must not overlook § 11,013, Comp. Laws, 1913, which provides that this court must give judgment "without regard to technical errors or defect or exceptions which do not affect the substantial rights of the parties." We must examine the rulings and instructions challenged with the spirit and purpose of this statute in mind.
One of the specifications of error, based upon the ruling of the trial court in admitting or excluding evidence, rests upon the following portion of the record; on re-direct examination the State asked the witness Carter the specific question. Counsel for defendant thereupon re-cross examined this officer as to the conversation with Gates at the time of the search and the officer stated that defendant said, "that is my bag." This specific question had not been asked on the direct examination. Counsel for defendant, on re-cross examination, asked this witness: "And yet you forgot to tell that when the State's Attorney asked you for the conversation?" To this question the State objected on the ground that it was argumentative and assumed facts not in evidence. The court sustained the objection. Again, To which a like objection was sustained. The State's Attorney had not, on direct examination asked the witness to state all the conversation. He had inquired about specific matters to which specific answers had been given. Counsel assumed that the witness had been asked to detail the conversation on direct examination. The assumption is entirely unwarranted and the ruling was correct. The only question and answer on the direct examination, pertaining to the ownership of the grip was as follows: ...
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