State v. Haakenson

Decision Date11 December 1973
Docket NumberNo. 432,432
Citation213 N.W.2d 394
PartiesThe STATE of North Dakota, Plaintiff and Appellee, v. Earl HAAKENSON, Defendant and Appellant. Crim.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. In a criminal case, if the claimed insufficiency of the evidence is appropriately raised in the trial court, this court may review the ruling of the trial court thereon, regardless of whether the trial court's order is appealed from.

2. In all cases involving claims of insufficiency of the evidence, a fair opportunity must be given to the trial court to correct any alleged error before it can be raised as ground for appeal.

3. The correctness of jury instructions in a criminal case can be raised on an appeal from a judgment, regardless of denial of a motion for new trial and failure to appeal from the order denying the motion for new trial.

4. The correctness of jury instructions is a question of law.

5. The evidence in this case is sufficient to raise a factual issue for determination by the jury.

6. An instruction in a homicide case which states that a person need not retreat before exercising the right of self-defense correctly states the law.

7. An instruction which states that the claim of self-defense is not maintainable where the defendant had ample and full opportunity to retire to a place of safety and thus avert the crime, is prejudically erroneous, although copied verbatim from a syllabus by this Court.

8. Instruction on degrees of homicide is required in a jury trial charging any degree of himicide other than the least.

Thomas F. Kelsch, State's Atty., Bismarck, for plaintiff and appellee.

Daniel J. Chapman, Bismarck, for defendant and appellant.

VOGEL, Judge, on rehearing.

The defendant was charged with first-degree manslaughter under an information charging him with killing John Tidball 'in a heat of passion' and 'without a design to effect the death of John Tidball.' After a jury trial, he was found guilty of second-degree manslaughter under instructions which defined 'second-degree manslaughter' as a homicide committed by 'culpable negligence,' which is one of the several definitions permitted by statute.

Section 12--27--17, North Dakota Century Code, defines 'Manslaughter in (the) first degree' as a homicide 'perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner or by means of a dangerous weapon, unless it is committed under such circumstances as contsitute excusable or justifiable homicide' (subsec. 2). 'Manslaughter in (the) second degree' is defined by Section 12--27--19, N.D.C.C., as a 'killing of one human being by the act, agency, procurement, or culpable negligence of another which, under the provisions of this chapter, is not murder nor manslaughter in the first degree, nor excusable nor justifiable homicide.'

During the trial the defendant made a motion for an advised verdict, which was denied. Such a motion raises the question of the sufficiency of the evidence, but the order denying it is not appealable. State v. Johnson, 88 N.W.2d 209 (N.D.1958). He also made a motion for a new trial. Such a motion also raises the question of the sufficiency of the evidence, and the order denying it is appealable. Defendant attempted to appeal from the order denying the motion for a new trial, but his appeal was untimely, since it was filed sixty-four days after the making of the order denying the motion. Section 29--28--08, N.D.C.C., provides that 'An appeal from a verdict or judgment may be taken within three months after its rendition and from an order within sixty days after it is made . . ..'

The defendant also appeals from the judgment, and his appeal from the judgment was timely.

The defendant raises questions, in addition to the sufficiency of the evidence, as to claimed error in the instructions of the court, particularly as to matters of self-defense and whether there is a duty to retreat, and also as to the propriety of instructions as to the lesser offense of second-degree manslaughter. He also claims that a finding of guilty of second-degree manslaughter under instructions defining that crime as one committed by 'culpable negligence' necessarily constitutes an acquittal of the crime charged, which is manslaughter committed 'in a heat of passion.'

The facts are not clear, because of conflicts in the testimony but they may be briefly summarized:

--The defendant and his wife live in a wooded area south of Bismarck. They have had trouble previously with trespassers, loud parties, and other nocturnal annoyances nearby. On the night in question they had guests, Mr. and Mrs. Sweep, who 'eft at about 3 a.m. in their own vehicle. A short distance from the Haakenson home, while traversing a curve on the road, Sweep saw young people on the road, stopped, and got into an argument with them, and returned to the Haakenson house either for the purpose, as he said, of calming his wife, or, as the young people said, to get reinforcements.

--Haakenson and Mr. Sweep then returned to the scene, although (as was known to Haakenson) another equally available route from the Haakenson home to the Sweep home was unimpeded. At the scene of the previous confrontation, the teenage boys who were involved in the first encounter with Sweep were joined by older persons, including the decedent, recently discharged from the Navy. One of the older persons had a shotgun. The events thereafter are much in dispute, but it appears that one of the young people attempted, or pretended, to fire the shotgun, another struggled with him for possession of it, and several of the young people made menacing movements toward the defendant, who had fired his pistol over their heads upon arriving at the scene. Several shots were fired, all of them by the defendant. One bullet struck the shotgun, another (or perhaps the same one) temporarily deafened one young man who fell to the ground in such a fashion as to lead others to believe he was injured, and the final bullet discharged by the defendant killed the decedent, who was unarmed but close to the defendant at the time. Ballistic evidence was to the effect that the bullet was fired at a muzzle-to-body distance of two inches or less.

--According to Sweep, at the moment before the fatal shot was fired, 'two kids were trying to get at' the defendant, and the defendant was swining at them with his right hand, while holding the pistol in his left hand, and the third man was approaching the defendant from a few feet away, holding the rifle by the barrel, like a club. One of the kids 'trying to get at' the defendant was the decedent.

--The defendant claimed the homicide was justifiable, in self-defense.

I. THE SCOPE OF REVIEW

We are met at the outset by the State's claim that we have nothing to review. Pointing to the facts that the defendant purported to appeal from both the order denying the motion for new trial and the judgment, that the motion for new trial included allegations of insufficiency of the evidence and alleged error in the instructions, and that the motion for new trial was too late, the State argues that the abortive appeal from the order denying a new trial makes the order res judicata and precludes review of all matters raised in the motion for new trial. The State argues that we are therefore restricted in our review to only matters appearing on the face of the judgment roll, and cannot review the evidence or the instructions.

While such an argument has merit as to civil cases (Marsden v. O'Callaghan, 77 N.W.2d 522 (N.D.1956)), we find it unpersuasive in criminal cases.

In support of its argument, the State cites State v. McClelland, 72 N.D. 665, 10 N.W.2d 798 (1943); State v. Emmil, 172 N.W.2d 589 (N.D.1969); and State v. Wilson, 142 N.W.2d 106 (N.D.1966). In State v. McCelland, the question of the sufficiency of the evidence was not presented to the lower court by either a motion for new trial or for advised verdict of guilty. It was held that the sufficiency of the evidence was not before the Supreme Court. In State v. Emmil, Supra, both appeals (from the order denying the motion for new trial and from the judgment) were taken too late, so there was nothing for the Supreme Court to review. And in State v. Wilson, Supra, the order denying the motion for new trial was not appealed from, and the appeal from the judgment was taken too late, so, again, obviously the Supreme Court had nothing before it. True, State v. Wilson contains language to the effect that failure to appeal from the order denying the motion for new trial 'alone would have prevented appellant from raising the sufficiency of the evidence,' but this is obviously dictum where there is no appeal at all from a judgment or anything else.

This court has held many times that it will not review the sufficiency of the evidence unless the matter has been brought before the lower court either by a motion for a new trial or by a motion for an advised verdict. Decisions refusing to consider the sufficiency of the evidence because the matter was not raised in the trial court include State v. Lende, 190 N.W.2d 52 (N.D.1971); State v. Haider, 150 N.W.2d 71 (N.D.1967); State v. Timm, 146 N.W.2d 552 (N.D.1966); State v. Eli, 62 N.W.2d 469 (N.D.1954); State v. Mostad, 70 N.D. 73, 291 N.W. 910 (1940); State v. Johnson, 68 N.D. 236, 278 N.W. 241 (1938); State v. Fahn, 53 N.D. 203, 205 N.W. 67 (1925); and State v. Glass, 29 N.D. 620, 151 N.W. 229 (1915).

All of these cases illustrate the application of the basic principle, applicable to both civil and criminal cases, that a fair opportunity must be given to the trial court to correct any alleged error before it is raised as grounds for appeal. But there is a difference between requiring the question to be raised in the trial court, and the rule advocated by the State here to the effect that a defendant must appeal from an order denying a motion raising the issue or else he cannot have it...

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