State v. Graber, Cr. N

• Decision Date: 27 November 1950
• Docket Number: Cr. N
• Citation: 77 N.D. 645,44 N.W.2d 798
• Parties: STATE v. GRABER et al. o. 229.
• Court: North Dakota Supreme Court

Page 798

44 N.W.2d 798

77 N.D. 645

STATE v. GRABER et al.

Cr. No. 229.

Supreme Court of North Dakota.

Nov. 27, 1950.

Syllabus by the Court.

1. On a motion for a new trial on the ground of the insufficiency of the evidence the question for determination is whether there is substantial evidence to sustain the verdict of the jury. That question is addressed to the sound, judicial discretion of the trial court. Its decision thereon will not be reversed unless an abuse of discretion is shown.

2. On a plea of self defense the question whether a defendant was, or in good faith believed himself to be, in such imminent danger that he was justified in using force to protect himself and the further question of whether the force he used was greater than the circumstances of the case warranted are questions for the jury and if its decisions thereon are supported by substantial evidence they will not be reversed on appeal.

3. The presumption is that a jury performs its duties in accordance with law and considers no evidence in a case other than that received in court. Where no showing is made to the contrary that presumption prevails.

4. A verdict cannot be impeached by the affidavit of a juror except in cases specifically provided by law.

5. A new trial will not be granted upon the ground of newly discovered evidence unless the evidence so discovered is of such a character as will probably change the result.

6. Whether or not a new trial should be granted on the grounds of newly discovered evidence is largely within the discretion of the trial court.

Benson & Swanson, Bottineau, for appellants.

Wallace E. Warner, Atty. Gen., Ralph B. Maxwell, State's Atty., for Rolette County, Rolla, for respondent.

GRIMSON, Judge.

The defendants were convicted of the crime of aggravated assault and they moved for a new trial which motion was denied. They appeal from the judgment of conviction and from the order denying the motion for a new trial.

On the appeal from the judgment the defendants urge the same grounds assigned as error on the motion for a new trial. Such are:

1. That the verdict is clearly against the evidence.

2. That the verdict is contrary to law.

3. That there was misconduct on the part of the jurors.

4. That there was newly discovered evidence very material to the defense which the defendants could not with reasonable diligence have discovered and produced at the trial.

As specification of error under the first two grounds defendants allege that 'The overwhelming evidence in the case shows that the state's complaining witness, Milo Hochstetler, was the aggressor at all times and that he hit the defendant, Emery Graber, first with the hammer. 2. 'That if it had not been for the state's complaining witness, Milo Hochstetler, wherein he testified that the defendant Graber was cut on the head by a rear view mirror in the center of the cab of the truck there would have been no conviction. This testimony was absolutely false.' In connection with this specification defendants argue assignment No-4 to the effect that newly discovered evidence shows that there 'never had been a rear view mirror in said truck.'

No errors of law either in the admission of evidence or in the instructions of the court are specified.

A motion for a new trial on the grounds of the insufficiency of the evidence is addressed to the sound, judicial, discretion of the trial court. The burden is on the movant of pointing out to the trial court wherein the evidence is insufficient to sustain the verdict. The appellate court will not interfere with the decision of the trial court unless an abuse of discretion is shown. State v. Shepard, 68 N.D. 143, 277 N.W. 315; State v. Cray, 31 N.D. 67, 153 N.W. 425; State v. Stepp, 48 N.D. 566, 185 N.W. 812, State v. Weber, 49 N.D. 325, 191 N.W. 610; State v. Vogt, 57 N.D. 335, 221 N.W. 887; State v. Strong, 52 N.D. 197, 201 N.W. 858; Kavanaugh v. Nestler, 45 N.D. 376, 177 N.W. 647, 3 Am.Jur. 164, Sec. 157, p. 140, Sec. 131, p. 145, Sec. 137.

On November 11, 1948, the complaining witness, Milo Hochstetler, was driving a 1937, Model D, 1 1/2 ton International truck south on an improved county highway in Rolette County, near the City of Rolette. He met a caravan of three vehicles coming north on that highway. The first was a tractor driven by the defendant, Emery Graber, the second was a truck driven by one Bennie Beaver, the last one was another tractor driven by defendant, Thomas Johnson. The defendant, Graber, stopped his tractor, waved to the complaining witness who then stopped by the side of but a little past the tractor. Graber walked towards him, opened the cab door and said he wanted to talk to him. There is a direct conflict in the testimony as to what happened then.

The complaining witness, Hochstetler, testified that Graber reached in, turned off the ignition of his truck and took the keys, that 'he pulled his gloves off, took his jacket off and threw it down, grabbed ahold of me and tried to pull me out of the truck.' Hochstetler claims that when he resisted Graber hit him 'along side of the face' with his fists; that Graber struck him again; that he laid down on the seat drawing his arm up and that Graber then struck him on the mouth; that he tried to get away from him further but that Graber got up on the fender over the wheel and kept striking him; that there was a hammer on the floor boards which he claims Graber grabbed and waved over him; that he guarded with his arm and got hold of the handle of the hammer; that Graber then called the defendant, Thomas Johnson, to take the hammer; that Johnson opened the door on the west side of the truck and took the hammer; that Johnson grabbed Hochstetler by the right arm and pulled him and Emery out of the truck, head first; that they rolled into the ditch and that when they got up Johnson held him by the arm while Graber struck him, knocking him down.

Graber's version of the beginning of this altercation is that he opened the left cab door of the truck and tried to talk to Hochstetler to get a settlement of what he claimed Hochstetler owed him; that Hochstetler claimed he owed nothing; Graber testified: 'He (Hochstetler) had a hammer. The hammer went over the top of my arm. If I had not thrown my arm up as quick at I did I believe he would have killed me.

'Q. Make any other contact of your body except the arm? A. On the head.

'Q. What was the nature of the blow on the head? A. Cut me open and I bled quite a bit.

'Q. What did you do then? A. I gave him a whipping.'

He claims Hochstetler tried to hit him with the hammer until he got Johnson to go around the truck and take it away from them; that they then both rolled into the ditch but got up and a standup fight then ensued.

Bennie Beaver drove the truck behind Graber's tractor and stopped about a block and a half away. He testifies that he saw Graber go to the truck, open the door and 'the first thing I knew they had started, they had started scrapping in the cab.'

'Q. Did you see a hammer in play any time while they were scrapping? A. I did not see nothing of a hammer.

'Q. Why did you leave the scene? A. Well, it was none of my business.'

The defendant, Thomas Johnson, was driving the tractor behind Beaver. He stopped and walked towards the Hochstetler truck.

'Q. When you got there to the Hochstetler truck what did you observe? A. The first I seen was when Milo swung the hammer and hit him.

'Q. Did Milo hit Emery with a hammer? A. Yes he did.

'Q. Where did he hit him? A. In the head. * * *

'Q. What happened then? A. There was a fight on.

'Q. Between whom? A. Between Emery and Milo.

'Q. Where was that? A. In the truck. Emery went right in after him.'

Johnson described the fray as follows: 'They were down on the cushion, Emery on top of course. He finally got ahold of his arm and held right arm with hammer and he says, 'Thomas, get that hammer.'

'Q. What did you do then? A. Walked around the truck, opened the door and took ahold of this hammer and pulled and said, 'Milo let go of the hammer.' Don't remember what he said but he let go.

'Q. You took the hammer? A. Took the hammer and put it in the back end of the truck.'

This is testimony of the parties who either participated in or saw the altercation. In addition the jury had before it surrounding circumstances such as the appearance of the snow at the site of the fight described by the sheriff. There was testimony to the effect that three or four days before the fight Emery Graber was heard to have threatened the complaining witness in connection with a civil suit between Hochstetler and Levi Graber, defendant's father, and that a day or two before the fight defendant, Thomas Johnson, had also been heard to make a remark that he would like to fight Hochstetler. Then there was the testimony of the police magistrate of Rolette that immediately after the fight the defendant, Graber, approached him inquiring how much it would cost to 'kick the guts out of a man.'

The jury is the judge of the credibility of the witnesses. This is not determined by the number of witnesses to a fact but by the faith and credit given each witness as determined from the whole evidence. When the jury has rendered its verdict the function of the appellate court on appeal from a motion denying a new trial is merely to ascertain whether there is substantial evidence to sustain the verdict of the jury. This court can not pass on the credibility of the witnesses. The trial court who heard and saw the witnesses in an exhaustive memorandum analyzed the testimony and came to the conclusion that 'there was ample evidence before the jury to justify the verdict they returned.' The decision of the trial court on the motion for a new trial on the grounds of the insufficiency of the evidence will not be reversed unless the record shows an abuse of discretion. State v. Shepard, supra; Klasen v. Kinnischtyke, 55 N.D. 839, 215 N.W. 552; Pengilly v. J. I....