State v. Haynes

• Decision Date: 04 November 1897
• Citation: 72 N.W. 923,7 N.D. 70
• Parties: STATE v. HAYNES.
• Court: North Dakota Supreme Court

7 N.D. 70

72 N.W. 923

STATE

v.HAYNES.

Supreme Court of North Dakota.

Nov. 4, 1897.

Syllabus by the Court.

In this case collateral and irrelevant matter, not adverted to in the examination in chief, was drawn out on cross-examination of the defendant as a witness. In rebuttal, and against objection, the state was permitted to contradict such collateral matter by testimony of a damaging nature highly prejudicial to the defendant. Held, that the ruling was prejudicial error, and the judgment must be reversed therefor.

Appeal from district court, Cass county; W. S. Lauder, Special Judge.

John B. Haynes was convicted of burglary, and appeals. Reversed.

Bartholomew, J., dissenting.Taylor Crum and Ida M. Crum, for appellant. F. B. Morrill, State's Atty.

WALLIN, J.

The defendant, together with one Thomas McKenzie, was charged in the information with the crime of burglary, committed at Hunter, in Cass county, on the 15th day of November, 1896, and was found guilty, and sentenced for such offense. A motion for a new trial based on a statement of the case was overruled, and the record embracing the evidence and proceedings at the trial is now before this court for review. We find numerous assignments of error in the record, all of which have been considered by the court; but we deem it necessary, in disposing of the case, to discuss only such of the assignments as are hereafter mentioned. The evidence is not disputed that a burglary was committed on the night of the 15th or morning of the 16th day of November, 1896, at Hunter, N. D., in the Great Northern depot building. An entry was made in the building either by raising the window sash, over which there was or had been a nail, or through the door, which was locked the night of the burglary, but was not broken. A safe in the depot was blown open with gunpowder, and money and other property within the safe was taken. McKenzie, who was accused by the information as a co-defendant, on a plea of guilty, was convicted of the offense, and is serving a term in the state's prison. One James Ream, who was also informed against for the same offense, testified in behalf of the state, and his testimony is to the effect that McKenzie, the defendant, and himself were in the vicinity of Hunter for several days immediately prior to the night of the burglary, and that all three were in Hunter on that night, and left the locality before daylight on the morning of the 16th of November, and that all three reached Moorhead on the night of November 17, 1896. Ream testifies also that at the time of the actual commission of the burglary he was not present, but that, soon after, the three were together, and that the witness was given some of the stolen property taken from the depot. On the night of the 17th of November, 1896, the defendant and the witness Ream were arrested while occupying the same bed in an hotel at Fargo, but defendant was soon after discharged from such arrest. Defendant was again arrested on November 20, 1896, and, on being searched by the officer, two drills and a punch were found on his person. These tools were put in evidence, the defendant objecting to such evidence on the ground that it was too remote, and did not connect the defendant with the commission of the offense charged. The defense interposed at the trial was that of an alibi. It was claimed in defendant's behalf that he was at Moorhead and Fargo on the 14th, 15th, and 16th days of November, 1896. If this claim was true, it is conceded that defendant could not have been at Hunter on the night of the burglary. William Oliver, Walter Garrison, and John Keating were called as witnesses by the defendant, and they testified, in substance, as follows: Oliver testified that he was the clerk of the Northern Pacific Avenue Hotel in Fargo on the 15th day of November, 1896, and that there was then a barber shop in the hotel, kept by said Garrison; that in the forenoon of that day the defendant came to the hotel, and was shaved by Garrison. This was corroborated by the testimony of Garrison. Oliver further testified that in the evening of the same day the defendant came back to the hotel in an intoxicated condition, and that he (Oliver), after receiving the sum of 50 cents from the defendant, showed him to bed; and that he remained in the hotel that night. Keating also testified that he was present the same night, and saw the clerk of the hotel show defendant to bed. Two other witnesses testified that they were saloon keepers, and knew defendant, and remembered his arrest in Moorhead on November 20th, and that defendant had for a week or 10 days preceding his arrest been frequently engaged in drinking and buying drinks and playing cards in their saloon at Moorhead. In further support of the alibi the defendant testified in his own behalf, corroborating the other witnesses as to where he was on the 15th and 16th days of November. There was no other feature of the defendant's testimony in chief of importance, except that he testified that he did, at McKenzie's request, and for his accommodation, purchase a couple of drills and a piece of steel of one Loudon, at Moorhead, on the day of his last arrest, and never had an opportunity to deliver them to McKenzie. Loudon testified also as to the purchase of these articles on the 20th, and further states that the tools were such as are commonly used by machinists and other mechanics. On his cross-examination defendant stated as follows: “I paid my lodging before I went to bed. I had eight dollars or ten dollars, which I had earned up at Conway, North Dakota, in the fall of 1896, through October. Was at Conway in October, 1896, working at threshing,-connected with the engine,-for Mr. McCann. * * * He lives one mile south and seven west of Conway. I worked all through threshing for him, I think twenty-seven days, firing engine, until October, when I left. Then I left there, and went to work at Larimore. Went to work for a man by the name of Mills. I left Mills about October 20th.” He further testified: “I don't remember of earning any money from early in September to the time of my arrest, except what I have mentioned. That was about all I had until my arrest.” The state, in rebuttal, and against defendant's objections thereto, showed by the testimony of two of the officials of Steele county, N. D., that the defendant was arrested in Steele county on or about the 12th day of September, 1896; and that after a preliminary examination defendant was held to answer at the next term of the district court for Steele county, and in default of bail he was imprisoned, and remained in jail continuously until November 10, 1896, at which date the defendant was discharged from arrest in a state of penury. At the proper time all of this testimony as given by the officials of Steele county was objected to by the defendant's counsel, and a motion was made to strike it from the record, upon the ground that such testimony was “matter introduced by the state for the purpose of contradicting collateral matter brought out by the state upon cross-examination, and matter not adverted to in the direct-examination.” Defendant's counsel saved exceptions to these rulings, and they are assigned as error in this court.

It is manifest that the testimony thus offered in rebuttal was of a highly prejudicial character. If the jury believed the same to be true, and the testimony was, in its nature, credible, the defendant was thereby discredited and wholly impeached as a witness, and the defense of an alibi (in so far as it rested on the testimony of the defendant) was completely demolished, and the defendant himself was degraded in the eyes of the jury as a deliberate falsifier under oath. A verdict of guilty was certainly a result which followed naturally, if not inevitably, from testimony so damaging as this. The propositions of fact made in support of these assignments of error by the defendants may be stated as follows: First, that the rebutting evidence was offered by the state for the sole purpose of contradicting the statements of the defendant as to certain matters drawn out for the first time on defendant's cross-examination; second, that such matter was not adverted to on defendant's examination in chief; third, that such matter (drawn out on cross-examination) was wholly collateral to the issue which the jury was sworn to try, viz. whether the defendant committed a burglary at Hunter, on the 15th day of November, 1896, as charged in the information. These propositions, so far as they embody statements of fact, are undeniably true. The statement that the defendant had worked near Conway, N. D., for 27 days, on a threshing machine, for one McCann, in the months of September and October, 1896, and thereby earned wages, and that defendant had...