State v. Johnson

• Decision Date: 23 February 1938
• Citation: 68 N.D. 236,278 N.W. 241
• Parties: STATE v. JOHNSON.
• Court: North Dakota Supreme Court

68 N.D. 236

278 N.W. 241

STATE

v.JOHNSON.

Supreme Court of North Dakota.

Cr. 155.

Feb. 23, 1938.

Syllabus by the Court.

1. Every reasonable presumption will be indulged in favor of the correctness of a judgment from which an appeal is taken.

2. On an incomplete record appellate court will presume any conceivable state of facts within the scope of the pleadings, and not inconsistent with the record, which will sustain the ruling or decision complained of.

3. Whether a judgment of conviction in a criminal case is sustained by the evidence cannot be raised for the first time in the Supreme Court.

4. Where a defendant in a criminal action attacks the judgment of conviction on the ground that the evidence is insufficient to support the judgment appealed from, and no motion for a new trial has been made by the appellant, and no ruling has been made by the trial court subsequent to the entry of judgment and imposition of sentence, the judgment of the trial court will not be disturbed.

Appeal from Ward County Court; Funke, Judge.

Walter G. Johnson was convicted of illegally operating a motor vehicle, and he appeals.

Affirmed.

Henry E. Johnson, of Minot, for appellant.

Alvin C. Strutz, Atty. Gen., and Milton K. Higgins, Asst. Atty. Gen., and Roy A. Ilvedson, State's Atty., and B. A. Dickinson, Asst. State's Atty., both of Minot, for the State.

HOLT, District Judge.

In this case a criminal information was filed against the defendant by the state's attorney of Ward county for violation of section 19, subdivision (c), chapter 160, p. 233, Session Laws of 1933. The action was tried in the county court of Ward county, the defendant was found guilty of a violation of said statute, and appeals from the judgment of conviction.

He specifies error as follows:

“1. The court erred in overruling the defendant's motion for dismissal of this action, which motion was made on the ground and for the reason that under the stipulated and admitted facts the defendant was not guilty of any crime.

2. The court erred in finding the defendant guilty of the crime of operating a motor vehicle in violation of law, as charged in the amended information filed in the said court.

3. The court erred in entering judgment of conviction against the defendant.

4. The court erred in overruling the defendant's motion for arrest of judgment and dismissal of the action after judgment of conviction had been entered.”

The principal contention of the appellant on the argument is that the evidence is insufficient to sustain the conviction. No statement of case was settled containing the proceedings had and the evidence adducedupon the trial. There was no motion for a new trial. The record contains an affidavit by the defendant and a stipulation of counsel attached thereto to the effect:

“That a jury trial be waived in the matter of the State of North Dakota v. Walter G. Johnson, and that the court may render its decision as to the guilt or innocence of the defendant and that the facts stated in the above affidavit of Walter Johnson are material facts in issue and may be considered by the court as the facts of this case. Also that defendant was driving his automobile on highways of Ward county on November 26, 1937, in the course of his employment, as set out in his affidavit.”

Judgment of conviction was rendered November 27, 1937, and the defendant was sentenced on December 1, 1937. There is attached to the record as certified to this court what is denominated an additional stipulation of facts signed by the assistant state's attorney and the attorney for the defendant. This additional stipulation of facts is dated December 2, 1937, the day after sentence was pronounced.

[1] Every reasonable presumption is in favor of the correctness of a judgment. When a defendant in a criminal action claims that a judgment of conviction is contrary to the evidence, he must present to the Supreme Court a record affirmatively showing error.

[2] “The appellate court will only consider the errors which are urged before it and specifically pointed out, and the review is confined to matters or objections urged below. 11 C.J. 221. It is a well-settled rule of general application that-‘An appellate court will indulge all reasonable presumptions in favor of the correctness of the judgment, order, or decree from which the appeal is taken. In other words it will be...