State v. Jager

• Decision Date: 26 July 1957
• Docket Number: 274,Cr. 263
• Citation: State v. Jager, 85 N.W.2d 240 (N.D. 1957)
• Parties: The STATE of North Dakota, Plaintiff and Respondent, v. Joseph E. JAGER and James Forrest Stewart, Defendants and Appellants (two cases).
• Court: North Dakota Supreme Court

Page 240

85 N.W.2d 240

The STATE of North Dakota, Plaintiff and Respondent, v. Joseph E. JAGER and James Forrest Stewart, Defendants and Appellants (two cases).

Cr. 263, 274.

Supreme Court of North Dakota.

July 26, 1957.

Rehearing Denied Oct. 14, 1957.

Syllabus by the Court.

1. A motion for a change of venue, because of bias or prejudice alleged to exist in a county, is addressed to the judicial discretion of the trial judge.

2. Where motion for a change of venue was founded upon affidavits and newspaper reports which were alleged to be inflammatory, and there were at least an equal number of counter-affidavits presented at the hearing on the motion, and it appeared that the newspaper reports were merely factual accounts, published ten months prior to the trial of the case, the trial court's order denying a change of venue was not an abuse of judicial discretion.

3. A criminal information may charge the theft of articles belonging to two or more persons as a single crime if such articles were stolen at the same time and place.

4. Where the foundation permitted a reasonable inference that a tire track was made by an automobile used in committing a larceny, a photograph of that tire track and photographs of the tread patterns of the tires on the automobile in defendants' possession at the time of their arrest were admissible in evidence at a trial for grand larceny.

5. Where, after offering an exhibit in evidence, the attorneys for defendants agreed that the exhibit might be used for a limited purpose only, and the exhibit was used for such purpose, the attorneys or their clients are in no position to urge that it was error not to receive the exhibit in evidence.

6. A motion for a new trial on the ground of newly discovered evidence is addressed to the trial court's judicial discretion and the trial court's decision on such a motion will not be set aside unless an abuse of discretion is shown.

7. Where the claimed newly discovered evidence is such that it has no probative value with respect to any of the substantial issues in the case, the trial court's decision denying a motion for a new trial was not an abuse of judicial discretion.

E. J. McIlraith, Minot, and Duffy & Haugland, Devils Lake, for defendants-appellants.

Ralph J. Erickstad, State's Atty. of Ramsey County, Devils Lake, and Philip R Bange, Sp. Asst. State's Atty. of Ramsey County, Grand Forks, for plaintiff-respondent.

BURKE, Judge.

The defendants were convicted of the crime of grand larceny in the District Court of Ramsey County. Judgment was pronounced against both defendants on February 26, 1954. On the same day the defendants filed a motion for a new trial and a notice of appeal from the judgment. The motion for a new trial came on for hearing on March 20, 1954, and it was denied by written order on April 26, 1954. No appeal was ever taken from this order.

The order settling the statement of the case upon the appeal from the judgment was made upon October 16, 1954. The defendants delayed in prosecuting this appeal because of their discovery that the law enforcement officers of Ramsey County had submitted certain items of physical property to the Federal Bureau of Investigation for examination; that a report upon such examination had been returned to the officers, but that the contents of the report had not been disclosed to the defendants nor made known to the court or jury.

After considerable controversy the defendants secured an order of the district court directing the State's Attorney of Ramsey County to furnish them with a copy of this report. Upon the basis of this report defendants made a second motion for a new trial on December 26, 1955, upon the ground of newly discovered evidence. This motion was denied on February 6, 1956. The defendants have appealed from the order denying this motion. There are thus two appeals before us: that from the judgment of conviction and that from the order denying the second motion for a new trial.

Upon the appeal from the judgment it is urged: first, that the trial court erred in refusing to grant the defendants' motion for a change of venue; second, that the court erred in overruling a demurrer to the information; and third, that the trial court erred in its rulings on the admission of certain evidence upon the trial of the case.

The motion for change of venue was made upon the ground that the defendants could not have a fair and impartial trial in Ramsey County because of the bias and prejudice of the residents of such county. Numerous affidavits were filed in support of this motion and at least an equal number against it. It was shown that newspapers published at the county seat of Ramsey County published an account in which it was stated that at the time of their arrest the defendants had firearms and burglars' tools in their possession. Approximately ten months had elapsed between the time of the publication of these articles and the trial. Other references to defendants' several motions for continuances in published newspaper articles were also called to the attention of the court. The trial court denied the motion.

A motion for a change of venue, because of bias or prejudice alleged to exist in a county is addressed to the judicial discretion of the trial judge. State v. Pusch, 77 N.D. 860, 46 N.W.2d 508. The trial judge in the exercise of this discretion determined that there was not prejudice or bias against the defendants of the extent or degree that would prevent them from having a fair trial in Ramsey County. He was present in the county and certainly in a much better position to weigh the merits of the conflicting affidavits filed by the parties than we are.

Insofar as the newspaper reports are concerned, they were merely factual accounts of what took place. They contain neither inflammatory language nor any expressed opinions as to the guilt or innocence of the defendants. In addition, the publication of the principal article was so remote from the time of trial, that it would be improbable that any jurors selected to try the case would remember its details. Subsequent newspaper references to motions for continuances were completely innocuous. In view of all the circumstances we are agreed that there was no abuse of the trial court's discretion in the denial of this motion.

Defendants' demurrer to the information was grounded upon their contention that it charged two separate and distinct crimes, namely: the larceny of money from one person and the larceny of a safe from another person.

The information charged that the defendants:

'did wilfully, unlawfully and feloniously, with fraud and stealth, take, steal and carry away personal property then and there exceeding the value of Twenty Dollars, consisting of lawful money of the United States of America and a safe, the said personal property being then and there in the possession of Lawrence Engelhart, the said money in the sum of Eight Hundred Eighty and no/100 Dollars, then and there owned by and the property of Barbara Meyer and the said safe then and there owned by and the property of Lawrence Engelhart and not the property of said defendants. * * *'

The evidence offered by the state tended to establish that Lawrence Engelhart owned a safe which he kept in his home; that he had placed in the safe a cash box containing $880 which was the property of his aunt, Barbara Meyer, and that this safe and its contents were stolen.

The question, therefore, is whether the larceny of a single receptacle which contains the property of more than one individual may be charged as a single crime. Upon this question we have no doubt whatever. It is a well-established principle that an information may charge the theft of articles, belonging to two or more persons, at the same time and place as a single crime. 52 C.J.S. Larceny Sec. 54, pages 844, 845; State v. Sampson, 157 Iowa 257, 138 N.W. 473, 42 L.R.A.,N.S., 967; State v. Mjelde, 29 Mont. 490, 75 P. 87; State v. Clark, 46 Or. 140, 80 P. 101; Clemm v. State, 154 Ala. 12, 45 So. 212, 129 Am.St.Rep. 17; Annotation: 42 L.R.A.,N.S., 968. In fact where, as in this case, there is the taking of a single receptacle containing the property of two or more persons such a taking will not support a charge of more than one crime. 52 C.J.S. Larceny Sec. 53, p. 844.

It follows that the demurrer to the information, upon the ground asserted, was properly overruled.

Next it is urged that it was error for the court to admit in evidence Exhibits 52, 55, 56, 57 and 58. Exhibit 52 is a photograph of an automobile tire track. The other exhibits are photographs of the tread pattern of the tires of the automobile in the defendants' possession at the time of their arrest. As a foundation for the introduction of the photograph of the tire track the state established that the parties who stole the safe came to the Engelhart premises in a gray Ford; that they parked it next to a hedge at a spot where the Engelhart property adjoins the alley at the rear; that a clear impression of a tire was...