State v. Isensee

• Decision Date: 24 August 1933
• Docket Number: Cr. No. 96.
• Citation: 64 N.D. 1,249 N.W. 898
• Parties: STATE v. ISENSEE.
• Court: North Dakota Supreme Court

64 N.D. 1

249 N.W. 898

STATE

v.ISENSEE.

Cr. No. 96.

Supreme Court of North Dakota.

Aug. 24, 1933.

Syllabus by the Court.

1. Chapter 115, Laws of North Dakota 1929, entitled “An Act defining arson, prescribing punishment for burning or attempting to burn buildings or other property, and burning of buildings or other property to defraud insurer, and repealing” certain sections of the Compiled Laws of 1913 (relating to similar acts and offenses), does not embrace more than one subject in contravention of section 61 of the Constitution of North Dakota.

2. For reasons stated in the opinion, no error prejudicial to the substantial rights of the defendant was committed by the amendment of the information by striking out the word “or,” and inserting in place thereof the word “and,” and proceeding to trial without having the information again verified after such amendment, and having the defendant again arraigned upon the information as so amended.

3. Ordinarily it is relevant to put in evidence any circumstance which tends to make the proposition at issue either more or less probable.

4. In a criminal action it is competent for the accused to prove any fact which may tend to explain or answer any incriminating evidence against him.

5. Where one party has adduced evidence tending to establish a fact adverse to the other, and such other party offers evidence in reply, the test of relevancy is whether the evidence offered tends to cut down, eliminate, explain, or obviate the force of the evidence that the former party adduced, or the fact which such evidence tended to establish.

6. For reasons stated in the opinion, it is held that it was error to exclude certain evidence offered by the defendant, which had a tendency to explain or answer incriminating evidence against him.

7. In the instant case the defendant is accused of willfully setting fire to and burning personal property with intent to defraud the insurer. On cross-examination of the accused the state was permitted to show that property belonging to a corporation in which defendant was a stockholder had sustained a loss by fire more than four years before the alleged offense in controversy was committed; and that another corporation of which defendant was president had sustained a loss by fire, partly covered by insurance, more than eight years before the alleged offense is claimed to have been committed. It is held, for reasons stated in the opinion, that the cross-examination was improper, and that the testimony elicited was not relevant to prove the guilt of the accused, nor was the cross-examination permissive for the purposes of impeachment, or as affecting the credibility of the defendant as a witness.

8. For reasons stated in the opinion it is held that the evidence in the instant case is such as to make the question of defendant's guilt one for the jury.

Appeal from District Court, Cass County; Kneeshaw, Judge.

Wesley L. Isensee was convicted of willfully setting fire to and burning personal property with intent to defraud the insurer (Chapter 115, Laws 1929), and he appeals.

Judgment reversed, and the cause remanded for a new trial.

Shure & Murphy, of Fargo, for appellant.

Frank I. Temple, State's Atty., of Fargo, and James Morris, Atty. Gen., for the State.

CHRISTIANSON, Judge.

The defendant was convicted of the crime of willfully setting fire to and burning personal property with intent to defraud the insurer in contravention of section 4, chapter 115, Laws of North Dakota 1929, and appeals from the judgment of conviction and from the order denying his motion for a new trial.

[1] The first assignment of error is predicated upon the overruling of defendant's demurrer to the information. The real ground of the demurrer is that the statute under which the prosecution was had is violative of section 61 of the State Constitution, and that, consequently, the information did not state facts sufficient to constitute a public offense.

Section 61 of the State Constitution reads: “No bill shall embrace more than one subject, which shall be expressed in its title, but a bill which violates this provision shall be invalidated thereby only as to so much thereof as shall not be so expressed.”

The title of the act under which the prosecution was had reads as follows: “An Act defining arson, prescribing punishment for burning or attempting to burn buildings or other property, and burning of buildings or other property to defraud insurer, and repealing Sections 9849, 9850, 9851, 9852, 9853, 9854, 9855, 9856, 9857, 9858, 9859, 9860, 9861, 9862, 9863, 9864, 9865, 9866, 9867 of the Compiled Laws of 1913.”

Section 1 of the act defines arson and prescribes the punishment therefor. Section 2 makes it an offense to willfully and maliciously set fire to, or burn, buildings other than a dwelling whether the property is that of the perpetrator or another. Section 3 makes it an offense for any person to willfully and maliciously set fire to, or cause to be burned, any barrack, crib, rick or stack of hay, corn, etc. Section 4 of the act (under which the defendant is charged) reads as follows: “Any person who wilfully and with intent to injure or defraud the insurer sets fire to, or burns or causes to be burned or who aids, counsels or procures the burning of any goods, wares, merchandise or other chattels or personal property of any kind, whether the property of himself or of another, which shall at the time be insured by any person or corporation against loss or damage by fire; shall upon conviction thereof, be sentenced to the county jail not to exceed one year, or to the penitentiary not to exceed five years.” (Section 4, c. 115, Laws of North Dakota 1929.)

Section 5 makes it an offense for any person to willfully and maliciously attempt to set fire to or burn, or aid, counsel, or procure the burning of, any of the buildings or property mentioned in the preceding sections. Section 6 makes it a crime to place or distribute any inflammable explosive material or substance or any device in any building or property mentioned in the foregoing sections in an arrangement or preparation with intent to eventually willfully and maliciously set fire to or burn the same.

Appellant contends that the statute embraces more than one subject, and, consequently,is violative of section 61 of the Constitution. It is argued that section 4 is a new statute with a different end and purpose than that of the other provisions in the act. It is said that the object and purpose of this statute was the protection of insurers and not the protection of property. It is, also, argued that the statute is violative of section 61 of the Constitution in this: That section 1 of the act alters the definition of arson and makes it an offense to set fire to or burn certain kinds of houses “regardless of habitation or possession”; that section 2 of the act creates a new and distinct offense; and the same argument is advanced as regards section 3. In our opinion, the contentions thus advanced cannot be sustained. We are aware of no reason why the Legislative Assembly may not in one statute enumerate the several acts which it seeks to inhibit so far as wrongful destruction of property by fire is concerned, and define the several acts inhibited as different offenses. It seems rather that it is desirable to place all inhibited acts of this nature in one legislative enactment. An act which seeks to deal with and prescribe appropriate penalties for the destruction of property by fire cannot, we think, be said to embrace more than one subject within the constitutional rule. Such statute has one main object and purpose in view, namely, to deal with and prescribe appropriate penalties for those who, by means of fire, commit, or attempt to commit, wrongful acts.

Constitutional provisions similar to section 61 are in force in many of the states in the Union. The cases that have arisen cover a multitude of subjects. Corpus Juris states the general rule to be deduced from the several decisions thus: “All matters which are germane to and connected with the general subject of a statute may be included in its provisions without rendering it violative of a constitutional provision prohibiting a statute from embracing more than one subject, and a statute, no matter how comprehensive it may be or how numerous its provisions, complies with the constitutional requirement if a single main purpose is held in view and nothing is embraced in the act except what is naturally connected with and incidental to that purpose. Thus, if desired, the entire statutory law upon a subject may be incorporated in one statute; and civil and criminal provisions may be incorporated in the same act.” 59 C. J. pp. 800, 802.

This court has, also, considered the purpose and effect of section 61 of the Constitution in many cases. See State v. Woodmansee, 1 N. D. 246, 46 N. W. 970, 11 L. R. A. 420;State v. Nomland, 3 N. D. 427, 57 N. W. 85, 44 Am. St. Rep. 572;Richard v. County, 8 N. D. 392, 79 N. W. 863; State ex rel. Kol v. Society, 10 N. D. 493, 88 N. W. 273;Powers Elevator Co. v. Pottner, 16 N. D. 359, 113 N. W. 703;State v. Burr, 16 N. D. 581, 113 N. W. 705;State v. Peake, 18 N. D. 101, 120 N. W. 47. See, also, State ex rel. Gaulke v. Turner, 37 N. D. 635, 164 N. W. 924;Chaffee v. Farmers' Co-operative Elevator Co., 39 N. D. 585, 168 N. W. 616;Great N. Ry. Co. v. Duncan, 42 N. D. 346, 176 N. W. 992;Thompson Yards v. Kingsley, 54 N. D. 49, 208 N. W. 949.

In Chaffee v. Farmers' Co-operative Elevator Co., supra, this court said:

“The requirement that the subject shall be expressed in the title of the act relates to substance and not to form. The requirement is addressed to the subject, and not to the details of the act. None of the provisions of a statute will be held unconstitutional when they are related, directly or indirectly, to the same subject, having natural connection, and are not foreign to the subject expressed in the title. As very...