State v. Jacob

• Decision Date: 10 October 1974
• Docket Number: Cr. N
• Citation: 222 N.W.2d 586
• Parties: The STATE of North Dakota, Plaintiff-Appellee, v. Valentine JACOB, Jr., Defendant-Appellant. o. 492.
• Court: North Dakota Supreme Court

Page 586

222 N.W.2d 586

The STATE of North Dakota, Plaintiff-Appellee, v. Valentine JACOB, Jr., Defendant-Appellant.

Cr. No. 492.

Supreme Court of North Dakota.

Oct. 10, 1974.

Rehearing Denied Oct. 31, 1974.

Syllabus by the Court

1. An instruction on self-defense given in a criminal action should advise the jury that the force exercised in self-defense is not deemed excessive if it is no greater than that which the actor reasonably believed to be necessary to repel the offense.

2. Where at a preliminary hearing the defendant had an opportunity to cross-examine the complainant and in fact did conduct a lengthy examination of the complainant, where counsel for the defendant was not curtailed in his cross-examination in any way, and where the complaining witness died between the time of the preliminary hearing and the trial, it was not error for the trial court to admit the testimony of the complaining witness at the trial. The further fact that the complaining witness was hard of hearing did not make the receipt of his testimony given at the preliminary hearing error on the part of the trial court.

3. Where no affidavits were filed with the trial court disclosing that the community was biased, or that the jury was predisposed to finding against the defendant, where the defendant did not exercise all of his peremptory challenges in the selection of the jury and where he made no showing on appeal that any challenges for cause were denied him by the trial court, the trial court's action in denying the defendant's motion for a change of venue, or in the alternative, a trial to the court, was not error.

F. C. Rohrich, State's Atty., Linton, for plaintiff-appellee.

William R. Mills, Bismarck, for defendant-appellant.

ERICKSTAD, Chief Justice.

The defendant, Valentine Jacob, Jr., was charged by criminal information in Emmons County with the offense of aggravated assault and battery for inflicting bodily harm upon the complainant, Mathias Jahner, in violation of Section 12--26--10, N.D.C.C. A jury trial was held in the District Court for Emmons County and a verdict of guilty was returned. Jacob filed a timely notice of appeal, stating that he appealed from 'the judgment of conviction made February 11, 1974, upon the verdict of guilty rendered February 5, 1974.'

It appears from the record that no judgment of conviction has been entered in this case. In times past, this may have meant dismissal. In 1965, however, our Legislature amended Section 29--28--06, N.D.C.C., to read:

'* * * An appeal may be taken by the defendant from:

'1. A verdict of guilty; * * *'

We are of the opinion that no prejudice results from treating this appeal as an appeal from the guilty verdict. Accordingly we shall proceed to the merits of this appeal.

For reasons to be stated, we vacate the verdict, reverse all subsequent orders or judgments, and remand for a new trial.

The facts that generated this prosecution may be briefly stated. In 1973, Jacob was 70 years of age; Jahner was 64 years of age. For some years, the two had been adjoining landowners in Emmons County. On October 9, 1973, Jacob and his son were excavating an approach on their property, near the section line which was common to them and Jahner. Jahner approached Jacob, apparently to inquire as to the nature of his work. Words were exchanged and an altercation between Jacob and Jahner ensued. It is undisputed that Jacob struck Jahner. The testimony was conflicting, however, as to what precipitated Jacob's action. Jacob testified that Jahner struck the first blow, with no provocation. The State introduced at the trial testimony of Jahner taken at the preliminary hearing, which was to the effect that Jahner had in no way provoked the attack. This testimony was allowed to be used as substantive evidence, as Jahner died between the preliminary hearing and the trial.

Jacob contends that several reversible errors were made at the trial. Specifically, he alleges that 1) the trial court erred in its instructions to the jury relative to self-defense; 2) the trial court erred in permitting the preliminary hearing testimony of the complainant to be used as substantive evidence at trial; 3) the jury was biased, and for this reason it was error to deny defendant's motion for a change of venue or, in the alternative, a trial to the court; and 4) the summation of the prosecutor was prejudicially improper, and it was error on the part of the trial court not to correct the summation.

The trial court gave the following as its instruction on the issue of self-defense:

'To use or to attempt or to offer to use force or violence upon or toward the person of another is not unlawful in the following cases:

'(1) When committed either by the party about to be injured or in preventing or attempting to prevent an offense against his person or any trespass or other unlawful interference with real or personal property in his lawful possession, If the force or violence used is not more than sufficient to prevent such offense.' (Emphasis supplied.)

Jacob contends that the instruction should have been supplemented by advising the jury that the force exercised in one's self-defense is not deemed excessive if it is no greater than that which the actor reasonably believed to be necessary to repel the offense at the time of the incident.

We believe that Jacob's contention is correct. We believe the law to be as stated in 1 Anderson, Wharton's Criminal Law and Procedure § 350 (1957), at 702:

'(T)he question to be determined by the jury (in self-defense cases) is not whether the force used was actually necessary to repel the attack, or whether some other or lesser force might have been adequate to the defendant's emergency, but whether, when he did use the force, he had, under all the circumstances, reasonable cause to believe and did believe that such force was necessary to protect himself from impending danger of great bodily harm.'

In State v. Hazlett, 16 N.D. 426, 113 N.W. 374 (1907), this court discussed the standard to be used in determining whether a person's conduct in repelling an attack is justified, Viz., whether the conduct amounts to lawful self-defense or illegal aggression. In Hazlett, the defendant was convicted of murder. On appeal he urged that the trial court's instruction on self-defense was erroneous. In a discussion of the self-defense instruction, this court said:

'(D)efendant's conduct is not to be judged by what a reasonably cautious person might or might not do or consider necessary to do under the like circumstances, but what he himself in good faith honestly believed and had reasonable ground to believe was necessary for him to do to protect himself from apprehended death or great bodily injury.' State v. Hazlett, Supra, 113 N.W. 374 at 380.

The instruction given in the instant case contained no admonition to the jurors that they should find that excessive force was used only if they found that defendant used a greater force than the defendant reasonably believed to be necessary. The instruction stated only that the force used in self-defense must not be 'more than sufficient to prevent such offense.' Although this is a quotation of the statute itself, it is incomplete and therefore erroneous. Under this instruction, a person repelling an attacker could be convicted of a crime if the jury, using 20--20 hindsight, determined that the force used was not actually necessary, whereas a person would be entitled to an acquittal under a proper instruction if the jury believed the person repelling the attacker reasonably believed he acted with no more force than necessary to prevent the offense.

We therefore reverse on this ground alone. Since the instruction was incomplete and thereby misleading and since it related to a subject central to the case, it affected the substantial rights of the defendant and accordingly...