State v. Haynes

• Decision Date: 10 May 1898
• Court: North Dakota Supreme Court

75 N.W. 267

7 N.D. 352

THE STATE OF NORTH DAKOTA v. JOHN B. HAYNES

Supreme Court of North Dakota

May 10, 1898

Appeal from District Court, Cass County; Lauder, J.

John B Haynes was convicted of burglary, and appeals.

Affirmed.

M. A Hildreth, for appellant.

In view of the courts charge that there was no direct testimony but the testimony of the witness Reams, he should have instructed that Reams was an accomplice and the refusal of the court to give defendant's request on this subject was prejudicial error. Knowlan v. State, 19 Ohio Rep. 13; 10 Crim L. Mag. 172; Peo. v. Ames, 39 Cal. 403; Peo. v Thompson, 50 Cal. 480, Abb. Tr. Cl. Bf. 452. When the testimony against the defendant is that of an accomplice, failure of the court to instruct the jury on the law upon that phase of the case is error. Brown v. State, 20 S.W. 924; State v. Coudotte, 7 N.D. 109, 72 N.W. 913; 2 Thompson on Trials, § 2427; Peo. v. Elliot, 106 N.Y. 292. If the jury had been instructed upon the point in question, they might have found that the evidence was insufficient to corroborate Reams. Peo. v. Maine, 114 Cal. 634; Peo. v. Smith, 98 Cal 218; State v. Kent, 4 N.D. 577; 2 A. and E. Enc. L. 393. The court should have charged the language of the statute as to accomplice and the necessity for his corroboration. Owens v. State, 20 S.W. 558; Peo. v. O'Neil, 109 N.Y. 267; Com. v. Holmes, 127 Mass. 424; State v. Maney, 54 Conn. 178; 9 Cr. L. Mag. 32.

Fred B. Morrill, State's Atty., for respondent.

The question as to whether or not Reams was an accomplice, was for the jury and not for the court to determine. State v. Lawler, 9 N.W. 702; Peo v. Sansome, 33 P. 202; Peo. v. Bollinger, 11 P. 799; Com. v. Clover, 111 Mass. 395; Dill v. State, 28 S.W. 950; Williams v. State, 25 S.W. 629; 1 A. and E. Enc. L. 2nd Ed. 393. The omission of the trial judge to charge the jury upon a particular point is not error, unless the court is asked to do so at the trial by a proper request. State v. Lawler, 9 N.W. 702, 28 Minn. 216.

OPINION

WALLIN, J.

The defendant was accused jointly with one Thomas McKenzie of the crime of burglary in the third degree, and after a verdict of guilty was sentenced to a term in the penitentiary. Upon a statement of the case, embracing only such evidence as bears upon the specific errors assigned upon the record, a motion for a new trial was made and denied. All errors assigned in this court have reference to the instructions to the jury as given, or as requested to be given by counsel and refused. No question as to the sufficiency of the evidence to sustain the verdict arises upon the record. The information charges, and the evidence tends to show, that a burglary was committed on the 16th day of November, 1896, at Hunter, in Cass County, by breaking into the Great Northern depot, and blowing open a safe therein. The fact of the commission of the crime was established by evidence beyond question, and was not controverted by evidence. To connect the defendant with the commission of the offense, the state, among others, introduced one James Ream as a witness, who testified, in substance, that he met both defendants (Haynes and McKenzie) at Mayville, N. D., on or about November 10, 1896, and kept in their company until they reached Moorhead, Minn., on the second day after the burglary. He said further that he was in company with the defendants when they reached the village of Hunter, in the evening preceding the burglary, and that all of them lay down and went to sleep that evening in the school house at Hunter. He further testified that when he awoke about 3 A. M. the next morning the defendants had just returned from the town, and that he heard them talk about the burglary in the depot. He stated further that all of them quitted Hunter together about 3:30 that morning, and did not part company until they reached Moorhead. This witness testified also that he was not present at the time the safe was blown open, but, on the contrary, was asleep in the school house, and did not know of the burglary until his companions returned, and talked of the matter in his presence. On cross-examination he admitted, in effect, that he had heard enough from his companions before reaching Hunter to satisfy him that some burglary was being contemplated; just where he did not know; he admitted that he was willing to participate in it, but also states that he did not do so as a matter of fact. The defendant McKenzie pleaded guilty to this charge, and was sent to the penitentiary. While there, his deposition was taken, and the same was put in evidence by the defendant. McKenzie testified squarely that the defendant Haynes was not present when the burglary was committed at Hunter, and that he did not participate at all in the burglary. He further testified that "there were two concerned in that burglary, and I was one of them; the other one was Conlin." Referring to the witness James Ream, McKenzie testified that Ream was in company with himself and Conlin for some days previous to the burglary; was at Hunter when the crime was committed, and continued with them until the three reached Moorhead together the second day after the commission of the offense. This witness did not testify in terms that Ream actually participated either in the criminal act or in planning the same.

At the close of the testimony the defendant, by his counsel requested the court to instruct the jury as follows: "That the witness Ream is an accomplice in this case, and before you can convict the defendant upon the testimony of Ream you must find that he is corroborated by evidence independent from said accomplice tending to connect the defendant with the commission of the crime" This request was refused, and the ruling is alleged as error in this court. We are clear that the instruction was properly refused. The evidence in our...