State v. Glass

Citation151 N.W. 229,29 N.D. 620
PartiesSTATE v. GLASS.
Decision Date01 March 1915
CourtUnited States State Supreme Court of North Dakota
OPINION TEXT STARTS HERE
Syllabus by the Court.

Where there is a motion for a new trial, rulings of the trial court, constituting proper grounds for a new trial under the statute, must be so presented, otherwise they will be deemed waived.

The sufficiency of the evidence to sustain the verdict in a criminal action will not be reviewed on appeal, unless the motion for a new trial specifies as error that the verdict is against the evidence.

An instruction “that circumstantial evidence is legal and competent in criminal cases such as this is, and, if it is of such character as to exclude every reasonable hypothesis other that that the defendant is guilty, is entitled to the same weight as direct testimony,” is not open to attack as an erroneous statement of law, especially where no request for additional instructions is made.

Failure of the trial court to instruct the jury as to the law governing the testimony of an accomplice cannot be urged as prejudicial error, in the absence of a request for such instruction.

Failure to instruct on the subject of an alibi is not reversible error, where no request to charge upon that feature of the case was made.

A jury sworn to try a criminal action may, at any time before the cause is submitted to the jury, in the discretion of the court, be permitted to separate.

If prejudicial language on the part of the prosecuting attorney is not objected to or called to the court's attention before the case is submitted to the jury, error cannot be assigned thereon.

Additional Syllabus by Editorial Staff.

The term “alibi” means elsewhere; in another place. It is a term used to define that mode of defense in a criminal prosecution, where the party accused, in order to prove that he could not have committed the crime with which he is charged, offers evidence to show that he was in another place at the time.

Appeal from District Court, Bowman County; W. L. Nuessle, Judge.

Herbert Glass was convicted of murder in the second degree, and appeals. Affirmed.Bangs, Netcher & Hamilton, of Grand Forks, for appellant. John Carmody, Asst. Atty. Gen., and W. F. Burnett, of Dickinson, for the State.

CHRISTIANSON, J.

The defendant was convicted of the crime of murder in the second degree in the district court of Bowman county upon a change of venue from Billings county and sentenced to 25 years' imprisonment for the murder of one Thomas Corcoran. After the return of the verdict, and before sentence was pronounced, defendant's counsel made a motion for a new trial, which was denied. Judgment was pronounced pursuant to the verdict, and this appeal is taken from such judgment.

The only errors urged by appellant for a reversal relate to certain rulings made by the trial court during the introduction of evidence, failure to give more specific instructions upon certain propositions of law, namely, circumstantial evidence, corroboration of an accomplice, and an alibi, and the insufficiency of the evidence to sustain the verdict.

The trial court submitted a written charge, and no requests were made for any further or additional instructions, nor were any exceptions taken to any part of the charge as given. In the motion for new trial, the only reasons urged are: (1) That during the trial of the action the jurors were permitted to go at large, and were not confined in the custody of bailiffs, and that at that time there were present a large number of witnesses and other persons who were hostile to the defendant in the courtroom, hotels, restaurants, and other places where the jurors necessarily had to go, and that a great deal of bitterness existed against the defendant among the people where he was being tried; and (2) that, during his argument to the jury, one of the attorneys for the prosecution made certain statements, indicating that the defendant and one Thomas Carberry, the principal witness for the state, were accomplices. These facts were asserted upon the affidavit of T. D. Casey, the attorney for the defendant, and no other affidavits or evidence of any kind submitted in support of said motion for a new trial. In opposition to said motion, the state submitted the affidavits of one of the attorneys for the prosecution, who denies making the statement referred to, the affidavit of the presiding judge who states:

“That when the jury in said action was impaneled, the attorneys for the state and T. D. Casey, attorney for the defendant, in open court requested the judge not to put the jurors in said action in custody of bailiffs, but to permit them to separate for the reason that there were no adequate quarters available for the lodging of the jury during the trial of said action, and that the court thereupon, at the request of the said T. D. Casey, attorney for the defendant, and J. K. Swihart and W. F. Burnett, attorneys for the plaintiff, made in open court, ordered that said jury be allowed to separate and specially admonished the jury as to the law and their duties during the trial of said action”

-and the affidavits of 11 of the jurors who state that:

“The court specially admonished the jury that they must not talk about the case with any one or allow any one else to talk about it in their presence, nor form nor express any opinion until the case was finally submitted. That during the trial of said action no one talked about said case to affiant or in affiant's presence, nor was affiant in any way influenced at arriving at his verdict by any person or persons, but affiant arrived at his verdict solely from the evidence given in open court and under the instructions given by the court.”

No contention is made that the jury was permitted to separate after the submission of the case.

The defendant in no manner challenged the sufficiency of the evidence, either by motion for an advised verdict of not guilty, or by motion for new trial; neither did he assert in his motion for new trial any error in the court's rulings on the admission or rejection of evidence or in the instructions given to the jury or the failure to instruct. Therefore, so far as the trial court was concerned, it was led to believe that no complaint was made as to any ruling made by the court relative to the admission or rejection of evidence, the court's instructions to the jury, or the sufficiency of the evidence to sustain the verdict.

[1] The laws of this state enumerate seven causes for granting new trials in criminal actions, among which are the following:

“* * * (5) When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial, or has done or allowed any act in the action prejudicial to the substantial rights of the defendant. (6) When the verdict is contrary to law or clearly against the evidence.” Section 10917, C. L. 1913.

[2] The only errors asserted by appellant on this appeal fall within the provisions of the above two quoted statutory provisions; but, as already stated, defendant did not embody any of these grounds in his motion for a new trial, but seeks to assert them for the first time on this appeal. The question is therefore presented whether the defendant, having failed to incorporate these grounds in his motion for new trial, can now predicate error thereon in this court.

It is contended by defendant's counsel on oral argument that in view of the fact that an order denying a new trial is appealable, and no appeal was taken from such order, defendant is not precluded from presenting on this appeal errors relating to the failure of the trial court to give certain instructions, even though these were not assigned as error in the motion for a new trial. We do not believe that this position is well taken, as defendant, when making a motion for a new trial, was required to assert any and all grounds which might be asserted under the statute by such motion. If the trial court erred in its rulings on the admission of evidence or in its instructions to the jury, or if the evidence was insufficient to sustain the verdict, any of these grounds constituted a sufficient cause for a new trial, but the defendant, in presenting a motion for new trial solely on other grounds, led the trial court to believe that the verdict was not attacked for any of these reasons. In other words, the defendant in the district court took the position that he was not entitled to a new trial on any of these grounds, but upon entirely different ones. This he is not permitted to do. Defendant cannot take the position in the court below, in presenting a motion for new trial, that the court's rulings on evidence and its instructions to the jury are correct, and the evidence sufficient to sustain the verdict, and then on appeal to this court assume the contrary position.

“Where a motion for a new trial is made by a losing party, all errors complained of must be embraced therein, otherwise they will be considered as having been waived. Any other practice would operate unjustly to the court below; the presumption being that he would have corrected those errors, if he had had an opportunity.” Lowery v. State, 72 Ga. 649.

These views are also sustained by the following authorities: Collier v. State, 20 Ark. 36;Wilson v. State (Tex. Cr. App.) 158 S. W. 1114;Haynes v. State (Tex. Cr. App.) 159 S. W. 1059;Thompson v. State (Tex. Cr. App.) 160 S. W. 685;Romero v. State (Tex. Cr. App.) 160 S. W. 1193;Louisville & N. R. Co. v. Commonwealth, 154 Ky. 293, 157 S. W. 369;Huffman v. State (Tex. Cr. App.) 152 S. W. 638;State v. Sydnor, 253 Mo. 375, 161 S. W. 692;State v. Johnson, 255 Mo. 281, 164 S. W. 209;Coulter v. State (Tex. Cr. App.) 162 S. W. 885;State v. Connors, 245 Mo. 477, 150 S. W. 1058;Coleman v. State (Tex. Cr. App.) 150 S. W. 1177;Norton v. State (Ind.) 100 N. E. 449;State v. Eaker, 17 N. M. 479, 131 Pac. 489;State v. Gatlin, 170 Mo. 354, 70 S. W. 885;Hill v....

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