State v. Hazer
Decision Date | 06 April 1929 |
Docket Number | Cr. No. 27. |
Citation | 225 N.W. 319,57 N.D. 900 |
Parties | STATE v. HAZER et al. |
Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
The defendants were convicted of the crime of grand larceny. They complain that the evidence is not sufficient to sustain the verdict and judgment. The record is examined, and it is held that the evidence is sufficient to sustain the verdict.
The question, as to whether a new trial shall be granted, is one which lies largely within the discretion of the trial judge. This discretion should always be exercised in the interests of justice. The presumption is that it was properly exercised. Held, in the instant case, that it does not appear that there was an abuse of discretion on the part of the trial judge in denying the defendants' motion for a new trial.
While it is reversible error to refuse, on request, proper instructions on the presumption of innocence, in the absence of request therefor, defendants cannot complain of an omission to so instruct. State v. Bowe (N. D.) 220 N. W. 843.
The conduct of the trial, the propriety of the examination of witnesses, and the order in which the evidence is offered, are matters which must be left largely to the sound discretion of the trial court. Held, for reasons stated in the opinion, that in the instant case there was no abuse of discretion, and no prejudicial error on account of rulings on the admission or rejection of testimony.
Appeal from District Court, Stutsman County; Fred Jansonius, Judge.
Adolph Hazer and another were convicted of grand larceny, and they appeal. Affirmed.
Knauf & Knauf, of Jamestown, for appellants.
Russell D. Chase, State's Atty., and H. E. Rittgers, Asst. State's Atty., both of Jamestown, for the State.
The defendants, Adolph Hazer and Rudolph Hazer, were jointly charged with and convicted of the crime of grand larceny. Thereafter they moved for a new trial, which motion was denied. From the judgment of conviction, and from the order denying the motion for a new trial, the defendants now appeal to this court.
As grounds for reversal, the appellants urge: The insufficiency of the evidence to sustain the verdict; errors of the trial court in rulings on questions of evidence; other errors of law occurring during the trial; error in giving and in failing to give proper and sufficient instructions to the jury; and error in denying their motion for a new trial, predicated on these various assignments, and on a showing of newly discovered evidence. In all the appellants specify 72 alleged errors as sustaining their appeal.
[1] The larceny charged was that of a red cow and her calf, the property of the complaining witness McClung, a farmer who lived near Cleveland, in Stutsman county. The defendants who are brothers are also farmers. Adolph Hazer, in addition to farming, carried on a live stock business in a small way, buying, feeding, and shipping cattle and hogs. Rudolph Hazer lived on a farm a short distance from McClung's. Adolph lived on his own farm some 10 or 15 miles north of Rudolph's. About the middle of October, 1927, McClung's cow and calf strayed away, and, though he searched diligently, he never found them. On October 18th he went to Rudolph Hazer's place and made inquiry of him concerning them. Rudolph denied any knowledge as to the whereabouts of the cattle, though he said he had seen some fitting their description about his place a few days before. Toward the latter part of November McClung received information leading him to believe that Adolph Hazer might know something about the cattle, so he went to see Adolph. It seems that on October 16th Adolph visited Rudolph. He had a truck which he used for transporting live stock as he bought it about the countryside. He returned home after dark that evening, and carried two cows and a calf in this truck He met with an accident on the road, the truck tipping over, and had to go to a way side farmer for help. This farmer's boys went to help him out of his difficulty, and in doing so observed the cows and the calf. He had to leave the animals in a pasture that night, and came and got them the next morning. The boys were called as witnesses by the state, and, according to their testimony, one of the cows and the calf fitted the description of McClung's lost cattle. Report of this incident reached McClung, and he went to see Adolph. Adolph said that he had met with the accident, and that he was bringing up some cattle he had bought from Rudolph. He said the cow and the calf were spotted animals and quite different in description from those lost by McClung. McClung, however, examined Adolph's cattle, but his were not among them. However, he at once went to see Rudolph before the brothers had an opportunity to talk together. McClung inquired of Rudolph as to whether he had sold two cows and a calf to Adolph, and Rudolph denied having done so. McClung then said Adolph says “he got two cows and a calf from you.” Rudolph was greatly embarrassed, and said he could not believe his brother would say such things, and wanted to see his brother. A little later McClung went back to Adolph's, and then found a red calf which he was certain was the one he had lost. There was testimony from numerous other witnesses as to the description of the animals in question, as to conversations with the defendants, and as to various other incidents, all tending in some respects to sustain the state's theory of the case, which was that Rudolph had feloniously taken the cattle, and Adolph had aided and abetted him by carrying them away and later disposing of them. At the trial the defendants sought to explain away any suspicious circumstances, and stoutly maintained that the cattle which Adolph had at the time of the accident were cattle which had belonged to Rudolph and which he had bought, and that they did not fit the description of McClung's cattle; that, though Rudolph had denied having sold them to Adolph, he did so for the reason that one of the cows was mortgaged, and he feared he might get into trouble because of selling mortgaged property. Many witnesses were examined in support of the defendants' case. The jury, however, returned a verdict of guilty as charged in the information.
We have examined the record carefully. The evidence is largely circumstantial. We are of the opinion, however, that it is sufficient to sustain the verdict as returned. Further comment is unnecessary. See State v. Thompson, 56 N. D. 716, 219 N. W. 218.
The cattle in question disappeared from McClung's shortly before October 16th. The defendants were arrested the latter part of November. They had a preliminary examination immediately, and were informed against and tried at the December term of the district court of Stutsman county, which convened on the first Monday in December. The winter of 1927-28 set in early. The defendants lived in a section of Stutsman county which is rather hilly, and remote from the county seat. The weather, beginning the latter part of November and during the month of December when the trial was had, was very cold, and there was a very heavy fall of snow. It was very difficult to travel by automobile, and it was impossible to get about by other means to investigate the matter carefully, owing to the distance required to be traveled. The defendants claim that, on account of these circumstances, they were unable to look up evidence and interview witnesses, and to adequately prepare their case, and that, as a consequence and without fault on their part, when the case came to trial they could not properly defend it; that, as soon as possible thereafter, they made further investigation, and discovered many facts and circumstances which would tend to cast a more favorable light on their case, and found numerous witnesses whose testimony would have been of great value to them. The boys who helped Adolph the night of the accident, and who testified at the trial as state's witnesses, later went to Adolph's place and examined certain cattle in his possession, and which unquestionably were not those lost by McClung, and now say that these were the cattle which were in the truck at the time of the accident. Other witnesses were interviewed who said that the latter part of October they saw a man somewhat resembling one of the state's important witnesses driving a cow and a calf,...
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