State v. Gibson

• Decision Date: 20 February 1939
• Citation: 284 N.W. 209,69 N.D. 70
• Parties: STATE v. GIBSON.
• Court: North Dakota Supreme Court

69 N.D. 70

284 N.W. 209

STATE

v.GIBSON.

Supreme Court of North Dakota.

Cr. 132.

Aug. 31, 1938.

Rehearing Denied Feb. 20, 1939.

On Petition for Rehearing.

Syllabus by the Court.

1. Following State v. Hagen, 54 N.D. 136, 208 N.W. 947, it is held: “the district court has no power to entertain a motion for a new trial made after the time for appeal has elapsed. An appeal from the judgment and a motion for a new trial are independent remedies, and the taking of an appeal does not extend the time within which the motion for the new trial must be made.”

2. A “confession”, as the term is employed in criminal law, is an acknowledgment in express terms by a person of his guilt of a crime, while an admission is an acknowledgment, direct or implied, of some fact or circumstance which in itself is insufficient to show guilt of a crime, but which is pertinent and tends in connection with the proof of other facts to prove such guilt.

3. In order to be admissible as evidence in a criminal action, a confession must be freely and voluntarily made.

4. An admission, not amounting to a confession, need not be proven to have been made freely and voluntarily in order to be admissible in evidence against the accused in a criminal action.

5. A written statement: “I killed my husband to protect my oldest daughter. I am writing this with my own free will. No one ever helped me to do this,” is not a confession but an admission, and is without the scope of the confessions-rule.

6. The bias of a witness, and his interest in the event of the prosecution, are not collateral, and may always be proved to enable the jury to estimate his credibility. It is competent as tending to impeach a witness, to show the witness's bias, prejudice or hostility against, or friendship in favor of, a party, and the extent and cause thereof.

7. Rulings on hypothetical questions submitted to medical experts considered, and for reasons stated in the opinion, held to be proper.

8. The constitutional right of a defendant in a criminal action, not to be compelled to be a witness against himself, is not violated by the introduction in evidence of his testimony voluntarily given at a coroner's inquest.

9. Certain rulings made by the court relating to the admission of evidence considered and held non-prejudicial.

10. When oral instructions are given to a jury in a criminal action, exceptions in writing to all instructions given or refused must be filed in the office of the Clerk of the District Court in which the action is tried within twenty days from the filing of the instructions, and unless such exceptions are filed, all objections to the instructions given, or to the refusal to instruct, are waived.

11. Section 9459, C.L.1913, which reads: “No person can be convicted of a murder or manslaughter or of aiding suicide, unless the death of the person alleged to have been killed and the fact of the killing by the accused as alleged, are each established as independent facts; the former by direct proof and the latter beyond a reasonable doubt; but in no case upon a plea of not guilty, shall the confession or admission of the accused, in writing or otherwise, be admissible to establish the death of the person alleged to have been killed,” is construed, and it is held: (1) It is only the fact of death that must be established by direct proof, and (2) the fact of the killing by the accused as alleged must be established beyond a reasonable doubt, but may be established by any competent evidence either direct or circumstantial, including the confession or admission of the accused.

12. It is held, for reasons stated in the opinion, that no error was committed in submitting to the jury the question whether the defendant was guilty of murder in the second degree.

13. The control of the remarks of counsel, during a criminal trial, is a matter largely in the discretion of the trial court, and where the remarks objected to are such as under the attending circumstances would not be likely to prejudice the cause of the accused in the minds of honest and intelligent men, the failure of the court to strike out the remarks, or caution the jury against them, does not constitute prejudicial error.

14. Under the laws of North Dakota, the Supreme Court, after hearing an appeal in a criminal action, must give judgment without regard to technical errors, or defects, or exceptions which do not affect the substantial rights of the parties.

15. The evidence is considered and, for reasons stated in the opinion, held to be sufficient to sustain a verdict of murder in the second degree.

Appeal from District Court, Burleigh County; McKenna, Special Judge.

Gladys R. Gibson was convicted of the crime of murder in the second degree, and she appeals from the judgment of conviction and from orders denying her motions for a new trial.

Affirmed.Starke & Starke, of Dickinson, and Keohane & Kuhfeld, of Beach, for appellant.

P. O. Sathre, Atty. Gen., and Theo. Kellogg, State's Atty., and H. A. Mackoff, Asst. State's Atty., both of Dickinson, for the State.

PER CURIAM.

The defendant was convicted of the crime of murder in the second degree, in the District Court of Burleigh County upon a change of venue from Stark County, and sentenced to fifteen years imprisonment in the penitentiary for the murder of her husband, Nathaniel Gibson. Sentence was pronounced June 29, 1935. On July 20, 1935, the defendant moved for a new trial. On July 26, 1935, the trial court entered an order denying such motion. Thereafter the defendant made a second motion for a new trial based upon all the grounds and assignments of error specified in the former motion and also upon certain additional specifications of error. The second motion was noticed to be heard on November 2, 1935. The trial court denied the second motion for a new trial on the ground that the motion came too late and that the court was without jurisdiction to entertain it. This appeal is taken from the judgment of conviction and from the said two orders denying the motions for a new trial.

The trial was quite extended. The transcript of the proceedings had upon the trial is contained in eight volumes aggregating more than twenty-three hundred pages. The facts as they are necessary for a consideration of the errors assigned will be stated in connection with the assignments to which they relate.

The errors assigned divide themselves into three main classes:

(1) Assignments predicated upon rulings in the admission or exclusion of evidence;

(2) Errors assigned upon instructions to the jury, given or refused; (3) The sufficiency of the evidence to sustain the verdict.

Nathaniel Gibson, the then husband of the defendant, died at Dickinson, North Dakota, on December 5, 1933, as the result of his being shot with a revolver. The wound from which he died was inflicted in the early morning of December 5th. At about four o'clock on the morning of that day the defendant called one Dr. Rogers in Dickinson on the telephone, saying to him: “Doctor, will you come over right away, something terrible has happened”. The doctor went to the Gibson house immediately and arrived there about eight or ten minutes later. He then found Nathaniel Gibson lying on a bed in the bedroom occupied by him and the defendant, with a gun in his left hand and a bullet hole through his head. Nathaniel Gibson was unconscious and bleeding profusely. He died about one hour and forty minutes later, without regaining consciousness. On December 18th, 1934, the defendant was arrested and charged with the crime of murder.

The evidence in the case shows beyond all doubt that the shot which killed Nathaniel Gibson was either fired by the defendant or was self-inflicted. It is the claim of the state that the shot was fired by the defendant, and it is the claim of the defense that Nathaniel Gibson committed suicide. The decedent, Nathaniel Gibson, was a rural mail carrier residing in Dickinson. He was about thirty-seven years of age. He and the defendant were married in 1916 and had living with them two daughters, Edith, age seventeen, and Pearl, age fourteen. His income as rural mail carrier aggregated nearly $200 per month. In addition to his wife and two daughters there was residing with the Gibson family a maid, one Katherine Donis; one Donald Webster, a brother of the defendant; and one Billy Amos, a friend of the defendant's brother.

Nathaniel Gibson and the defendant's brother, Donald Webster, were members of the Dickinson Company of the National Guard.

After supper, on the evening of December 4, 1933, the defendant drove her husband and her brother Donald to the Armory where they were to attend a drill of the National Guard Company of which they were members. One Lillie, a mechanic who performed some work on one of the cars used by the decedent, Gibson, in carrying mail, testified that Gibson came that evening about 9:45 and got the car.

The defendant testified that Nathaniel Gibson came home a little after 1 A. M.; that he had some trouble with his car in the driveway; that she went out to see what the trouble was and found him to be intoxicated; that he vomited in the car; that she tried to get him into the house but couldn't and went to the house and got her brother Donald Webster to come and assist her. She testified that after he was taken into the house he was seated on the davenport in the living room and undressed; that there was vomit all over his clothes; that she laid the clothes on the floor in the bedroom; that there was no gun in the clothing removed from the decedent when he was undressed. After being undressed, Nathaniel Gibson was placed in bed and the defendant's brother went to his room in the basement. Defendant testified that she laid down on the bed beside Mr. Gibson; that she was up a number of times to attend to him when he vomited; that the odor from the vomit nauseated her and that shortly before four o'clock she went upstairs to the bathroom. Before going to the...