State v. Isensee
| Decision Date | 24 August 1933 |
| Docket Number | Cr. 86 |
| Citation | 249 N.W. 898,64 N.D. 1 |
| Court | North Dakota Supreme Court |
Appeal from the District Court, Cass County, Kneeshaw, J Wesley L. Isensee was convicted of wilfully setting fire to and burning personal property with intent to defraud the insurer (Laws 1929, chap. 115), and appeals from the judgment of conviction.
Reversed and remanded for a new trial.
Shure & Murphy, for appellant.
Where a statute prescribes different means or methods whereby an offense may be committed, the means or method must be alleged conjunctively or the indictment or information is subject to demurrer as uncertain. State v. Kerr, 3 N.D. 523, 58 N.W. 27; State v. Lonne, 15 N.D. 275, 107 N.W. 524.
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. N.D. Const. § 61, art. 2.
Arson is an offense against security of habitation or possession rather than against property. 5 C.J. 540, note 25; 1 Words & Phrases, p. 507; State v. Sawyer (Fla.) 132 So. 188; State v. Haas, 2 N.D. 202, 50 N.W. 524; State v Barnes, 3 N.D. 326, 55 N.W. 883; State v McGillich, 25 N.D. 27, 141 N.W. 82; State v. Brown, 38 N.D. 340, 165 N.W. 520; 36 Cyc. 1025.
The statute on amendments permits an amendment as a matter of form without a new verification, or of substance with a new verification. The use of the alternative "or" was not a mere matter of form but was one of substance, requiring a new verification under the statute. State v. Kerr, 3 N.D. 523, 58 N.W. 27; State v. Lonne, 15 N, D. 275, 107 N.W. 524.
It is neither competent nor relevant to prove one crime by proving another. Jones, Ev. §§ 143, 145; 16 C.J. 586; Fish v. United States, 215 F. 544; People v. Molineaux, 168 N.Y. 193; State v. Fallon, 2 N.D. 510, 52 N.W. 318; State v. Kent, 5 N.D. 516, 67 N.W. 1052; State v. Hazlett, 16 N.D. 426, 113 N.W. 374; State v. Gummer, 51 N.D. 445, 200 N.W. 20; State v. Flath, 61 N.D. 342, 237 N.W. 792.
With rare exceptions it is not competent to inquire on cross-examination of a defendant as to other crimes than that with which he is charged. State v. La Mont, 23 S.D. 174, 120 N.W. 1104.
Exceptions to an oral charge are required to be filed within twenty days and unless so filed the right thereto will be waived. State v. Riley, 25 N.D. 342, 114 N.W. 720; State v. Shoars, 59 N.D. 67, 228 N.W. 413; State v. Campbell, 7 N.D. 58, 78 N.W. 935.
Although an instruction may state the correct principle of law, if it is not based upon or in conformity with the issues or facts raised or supported by the evidence it is erroneous. 16 C.J. 1041, § 2482, note 14.
It is error for the court in giving instructions to comment upon the weight of testimony offered by the defendant. State v. Young, 55 N.D. 194, 212 N.W. 857; State v. Barry, 11 N.D. 428, 92 N.W. 809; State v. Peltier, 21 N.D. 188, 129 N.W. 451.
In addition to the general presumption of innocence there is a legal presumption in cases of this character that the fire was caused by accident rather than by design, and this presumption is not overcome by the mere fact of burning. 3 Cyc. 1003; 56 C.J. 571, note 83; 2 R.C.L. 513, § 17; State v. Smith, 252 P. 530; Williams v. State, 169 N.E. 698; State v. Berowitz, 29 S.W.2d 150; State v. Brown, L.R.A.1916D, 1299; State v. Volk, 199 N.W. 151.
Frank L. Temple, State's Attorney and James Morris, Attorney General, for respondent.
While constitutional provisions are mandatory they should be reasonably and liberally construed, due regard being had to their object and purpose. 25 R.C.L. 837; State v. Morgan, 2 S.D. 32, 48 N.W. 314; Ramsey County v. Heenan, 2 Minn. 330, Gil. 281; State v. County Judge, 2 Iowa, 280; State v. Home Soc. 10 N.D. 493.
"The constitutional provision which provides that 'no bill' shall embrace more than one subject, which shall be expressed in its title," is not intended to forbid or prevent including in the bill such means as are reasonably adapted to secure the objects intended by the title. State ex rel. Gaulke v. Turner, 37 N.D. 635, 164 N.W. 924.
Offense charged must be determined by statements of fact in indictment and not by designation given in caption. State v. Bendickson, 62 N.D. 201, 242 N.W. 693.
When a defendant in a criminal case voluntarily takes the witness stand in his own behalf, he thereby subjects himself to the same rules of cross-examination that govern other witnesses, with the exception that his privileges are somewhat curtailed, in that he is not only required to answer any relevant and proper question on cross-examination that may tend to convict him of the offense for which he is being tried. State v. Kent, 5 N.D. 516.
Evidence of similar false pretenses is particularly relevant when it appears that the fraudulent act for which the accused is on trial does not stand alone, but is a part of a scheme not merely to defraud one individual but to swindle the community at large. Underhill, Crim. Ev. § 438; State v. Germain, 54 Or. 395, 103 P. 521; State v. Briggs, 74 Kan. 377, 86 P. 447, 7 L.R.A.(N.S.) 278, 10 Ann. Cas. 904.
"An alibi is, in criminal evidence, the defendant's showing under his plea of not guilty and without special averment, that when the criminal thing was done, he was at some place where he could not be the doer." Bishop, New Crim. Proc. § 1061; State v. Glass, 29 N.D. 620, 151 N.W. 229.
The making of exceptions and the filing of the same are two different things, and while oral instructions are deemed to be excepted to at the time they are given, the exceptions must thereafter be written out and filed within twenty days or they are waived. State v. Shoars, 59 N.D. 67, 228 N.W. 413.
The defendant was convicted of the crime of wilfully setting fire to and burning personal property with intent to defraud the insurer in contravention of § 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.
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 § 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 §§ 9849, 9850, 9851, 9852, 9853, 9854, 9855, 9856, 9857, 9858, 9859, 9860, 9861, 9862, 9863, 9864, 9865, 9866, 9867 of the Comp. Laws of 1913."
Section 1 of the Act defines arson and prescribes the punishment therefor. Section 2 makes it an offense to wilfully 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 wilfully 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." (N.D. Laws 1929, § 4, chap. 115.)
Section 5 makes it an offense for any person to wilfully 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 wilfully and maliciously set fire to or burn the same.
Appellant contends that the statute embraces more than one subject and consequently, is violative of § 61 of the constitution. It is argued that § 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 § 61 of the Constitution in this: that § 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 § 2 of the Act creates a new and distinct offense, and the same argument is advanced as regards § 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,...
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