State v. Johnson

• Decision Date: 14 October 1930
• Docket Number: Cr. No. 60.
• Citation: 60 N.D. 56,232 N.W. 473
• Parties: STATE v. JOHNSON.
• Court: North Dakota Supreme Court

60 N.D. 56

232 N.W. 473

STATE

v.JOHNSON.

Cr. No. 60.

Supreme Court of North Dakota.

Oct. 14, 1930.

Syllabus by the Court.

In matters of description, description of action, or appearance of a defendant, it is within the discretion of the trial court to permit a witness to state a fact observed by him, even though his statement involves a certain element of inference.

Syllabus by the Court.

The admission of evidence to the effect that on the day a crime was alleged to have been committed, a public sale was held four or five miles from the scene of the alleged crime, was in no way prejudicial to the defendant.

Syllabus by the Court.

In the instant case the evidence fully sustains the conviction.

Appeal from District Court, McLean County; R. G. McFarland, Judge.

Frank S. Johnson was convicted of larceny of cattle, and he appeals.

Affirmed.McCulloch & McCulloch, of Washburn, for appellant.

James Morris, Atty. Gen., and R. L. Fraser, State's Atty., of Washburn, for the State.

BURKE, C. J.

This is an appeal from a judgment of conviction for the larceny of two white muley steers and one muley heifer, the property of Helmuth Krueger.

[1] Appellant assigns as error the overruling of a motion to strike out the following testimony: “Well now, tell us what happened when this man came running out and invited you in to dinner?” Ans. “Why we started getting out of the truck and when he seen them get out of the truck or noticed Charlie Ross he looked kind of excited about something.” This testimony was given by Helmuth Krueger, owner of the animals, who had testified that he was at defendant's place earlier in the day stating that they were butchering a steer at the time; that he saw a heifer there which he recognized as his heifer, and said: “I asked Frank Johnson where he got my heifer? And he said, he traded for this heifer. ‘Can't you see my ear marks on her,’ he said. And I told him, that's too bad Frank, but she has got my brand on it. He said, ‘if she is yours why take her.’ I asked them if there were any stray cattle around, and he said, ‘yes, we had a white steer down in the pasture,’ and I asked him, you haven't seen a red muley steer, blind in one eye, and he said, ‘no.’ I thought maybe I had better get somebody to go over there with me so I would have some witnesses. I got Charlie Ross and Vernon Peterson and went back to Frank Johnson's place. Frank came running out and asked us to come in to dinner.” Here follows the testimony that the court refused to strike out. The next question is, “And can you tell us what if any motion he went through at that time?” Aus. “Why when he seen Charlie Ross get out of the truck he turned around and went like that, as if he was worried about something.” Another motion was made to strike the answer out as a conclusion, and the Attorney General said: “We will concede that the latter part of the answer can be stricken out. His answer as to motions I think should stand.” The court: “That part may be stricken out that the attorney general consents.” Ques. “We just want to know how he acted? Not any conclusion of your own, but I just want to know what motions he went through.” His actions are then described without any further objection. Krueger also recognized the steer they were butchering as his steer. They found the Krueger brand on the butchered steer, and the defendant Frank Johnson said to Bill Johnson, “We made a mistake we butchered Fred's steer.” Krueger is sometimes called Fred or Fritz. It was certainly proper and competent to show the defendant's actions and demeanor at that time.

“There are numerous matters, which, from their very nature, cannot be stated or described in such language as will enable one not an eye witness to form an accurate judgment. Accordingly, as to such matters, opinions of nonexperts are held admissible as of necessity. To illustrate, opinions of nonexperts have been received as to the disposition or temper of animals; the appearance of animals,or of things. In many instances courts admit nonexpert opinions as to the appearance or condition of a human being, nervous condition before and after accident; nervous wreck; looked like a white woman; frightened; fighting mad; body looked as though struck with hot iron and scarred; child was fully developed; looked like he was looking or waiting for someone; appeared to be keen; excited; nice looking; agitated and worried; could not walk as well after accident,” and many other illustrations given by 3 Jones on Evidence, pp. 2302 to 2306, §§ 1250 and 1251.

In the case of Schultz v. Frankfort, 151 Wis. 537, 139 N. W. 386, 391, 43 L. R. A. (N. S.) page 520, the Wisconsin court said: “Conclusions of fact are not always inadmissible, and, so far as they relate to...