State v. Kent

• Decision Date: 05 June 1896
• Docket Number: 6731
• Citation: 67 N.W. 1052,5 N.D. 516
• Court: North Dakota Supreme Court

67 N.W. 1052

5 N.D. 516

STATE OF NORTH DAKOTA v. MYRON R. KENT

No. 6731

Supreme Court of North Dakota

June 5, 1896

Error to District Court, Cass County; McConnell, J.

William W. Pancoast, informed against as Myron R. Kent, was convicted of murder, and brings error.

Affirmed.

M. A Hildreth, Jas. E. Campbell, and W. H. Barnett, (C. F. Amidon of counsel,) for plaintiff in error.

The change of venue from the Sixth Judicial District to the Third Judicial District, after the trial had begun, was without authority of law. Section 7312, Comp. Laws. The court was without jurisdiction, and defendant could not confer jurisdiction by consent. Bronillett v. Judge, 12 Rep. 134; State v. Bulling, 12 S.W. 356; Hudley v. State, 36 Ark. 237; Duncan v. State, 84 Ind 204; Keith v. State, 90 Ind. 89; App. v State, 90 Ind. 73; 9 Am. and Eng. Enc. L. 650; 10 Am. and Eng. Enc. L. 630. Constitutional rights cannot be waived. 6 Cr. L. Mag. 182; Peo v. Murray, 5 Cr. L. Mag. 227. State v. Carman, 5 Cr. L. Mag. 560; Peo. v. Lyons, 5 Cr. L. Mag. 678. The verification to the information is void, it being on belief only. Chapter 71, Laws 1890; State v. Hazledahl, 2 N.D. 521; 16 L. R. A. 153. The law does not permit the state to call witnesses to testify whose names are not indorsed upon the information, unless they were unknown to the states attorney as witnesses when the information was filed. Chapter 71, Laws 1890; Peo. v. Hall, 12 N.W. 665; Parks v. State, 31 N.W. 5; Peo. v. Quick, 25 N.W. 302; Logan v. United States, 144 U.S. 263-310; 36 L.Ed. 439; 12 S. C. R. 617; Peo. v. Dietz, 49 N.W. 296; U. S. v. Stewart, 2 Dallas, 342; 1 L.Ed. 408; State v. Stevens, 47 N.W. 546; Stevens v. State, 28 N.W. 304; Gandy v. State, 40 N.W. 302; State v. Hamilton, 13 Nev. 386; Peo. v. Howes, 45 N.W. 961. The states attorney should make showing that he was not aware of the mistake until that time. Binkley v. State, 52 N.W. 708. An accomplice cannot corroborate himself by his own acts or declarations made after the homicide. Peo. v. Bleecker, 2 Wheelers Cr. Cases, 255; Peo. v. Stanley, 47 Cal. 113; Peo. v. Moore, 45 Cal. 19; Peo. v. Pavlik, 3 N.Y.S. 232; Com. v. Crowninshield, 10 Pick. 497. The testimony of Bingenheimer as to what he did in his endeavors to find defendant was improperly admitted and prejudice is presumed. Queen v. Gibson, 7 Am. Cr. Repts. 171; Somerville v. State, 6 Tex.App. 433; State v. Melrose, 12 S.W. 250; Peo. v. Pavlik, 3 N.Y.S. 232; Peo. v. Sharp, 19 N.W. 168; Lewis v. Com., 11 S.W. 27. It cannot be contended that the receiving of incompetent testimony was not injurious to the accused. No one can tell whether the jury were guided by that which was proper or improper. State v. Rothschild, 3 Am. Cr. Repts. 326; McMillen v. Aitchison, 3 N.D. 183; Coleman v. Peo., 2 Cowens Cr. Repts. 19. The error must be shown conclusively to be innocuous else it will reverse the conviction. Vandevoort v. Gould, 36 N.Y. 639; Peo. v. Haines, 1 Cow. Cr. Repts. 71; Peo. v. White, 14 Wend. 112. The cross-examination of defendant as to other crimes, at a remote time was improper. Unless the independent offense is directly connected with the principal offense it cannot be proven as showing motive. State v. LaPage, 2 Am. Cr. Rep. 506, 57 N.H. 245, cited with approval in State v. Fallon, 2 N.D. 514; Shaffner v. Com., 72 Pa. 60, 13 Am. Repts. 649. The limit to evidence of this character is that it must be sufficiently near in point of time to have a tendency to lead the guarded discretion of a reasonable and just man to a belief in the existence of this important element in the fact to be proved. Thayer v. Thayer, 101 Mass. 111, 113; Com. v. Abbott, 130 Mass. 473; Billings v. State, 12 S.W. 574. The cross-examination of defendant should have been limited to matters pertinent to the issue, or such matters as could have been proven by other witnesses. Peo. v. Brown, 72 N.Y. 571; State v. Lawrence, 57 Me. 581; Peo. v. Crapo, 76 N.Y. 291; Clarke v. State, 78 Ala. 474; 6 Am. Cr. Rep. 525; Elliott v. State, 51 N.W. 315; Thomp. on Trials, 652, 653. The point of objection to this line of cross-examination in Territory v. O'Hare, 1 N.D. 30, (44 N.W. 1003,) was that "the state cannot inquire into defendants history or attack his character unless the defendant has first put his character in issue." This was the ground upon which the objection was rested in the case of Brandon v. People, 42 N.Y. 268, and the latter case was distinguished in Peo. v. Brown, 72 N.Y. 571. The defendant was privileged from answering as to collateral crimes. Whart. Cr. Ev. § 432; State v. White, 27 Am. Repts. 142 and note. The cross-examination as to remote criminal acts was incompetent for impeaching defendants credibility, as a witness. The inquiry should have been confined to transactions comparatively recent, bearing directly upon the present character of the witness. Greenleaf Ev. § 459; Whart. Cr. Ev. § 472; Carroll v. State, 24 S.W. 100; Holder v. State, 25 S.W. 279; Turner v. King, 32 S.W. 941. A defendant cannot be asked if he has been indicted for the purpose of impeaching him. Van Bokkelen v. Berdell, 130 N.Y. 141; Peo. v. Crapo, 76 N.Y. 291; Peo. v. Irving, 95 N.Y. 541; Peo. v. Noelke, 94 N.Y. 137; Ryan v. Peo., 79 N.Y. 594; Bates v. State, 30 S.W. 890; Tifft v. Moor, 59 Barb. 619; Hannah v. McKellip, 49 Barb. 342. A witness cannot be impeached by proof of a series of facts from the existence of which the inference of the perpetration of a crime may be drawn. Questions for the purpose of impeachment must be directed to specific acts. Whart. Cr. Ev. § 432; Schultz v. Third Ave. Ry. Co., 89 N.Y. 242, 250; State v. Punshon, 34 S.W. 25. The fact that defendant denied all insinuations of counsel, and crimes imputed to him on cross-examination does not show that he was not prejudiced by the examination. Bates v. State, 30 S.W. 890; Peo. v. Wells, 34 P. 1078; Peo. v. Mullings, 23 P. 229; Gale v. People, 26 Mich. 158. The introduction of exhibit "P" was error. When a party on cross-examination of a witness puts questions to him that are collateral or irrelevant to the issue he makes the witness his own, and he has no right to contradict him by other testimony, but the statements of the witness in answer to such questions are conclusive against him. Greenleaf, Ev. § 449; Stokes v. People, 53 N.Y. 164; Butler v. Cooper, 42 P. 839; It is prejudicial error to allow counsel in argument to travel outside of the record, and indulge in the assertion of matters which have not been established by the testimony. Graves v. United States, 37 L.Ed. 1021; Long v. State, 56 Ind. 182; Ferguson v. State, 49 Ind. 33; Coble v. Coble, 28 Am. Rep. 339; Angelo v. People, 96 Ill. 209; Brown v. Swineford, 44 Wis. 282; Tucker v. Henniker, 41 N.H. 317; Scripps v. Reily, 35 Mich. 371; Cleveland Paper Co. v. Banks, 15 Neb. 20; Fox v. Peo., 95 Ill. 71; Earll v. People, 99 Ill. 123; Union Cent. Ins. Co. v. Cheever, 36 Ohio St. 201; Martin v. Orndorff, 22 Ia. 505; Hatch v. State, 8 Tex.App. 416; Laubach v. State, 12 Tex.App. 583; State v. Smith, 1 Am. Cr. Repts. 580; State v. Johnson, 76 Mo. 121; Kerr on Homicide, § 306. The directions of the court to the jury did not cure the error. Yoe v. People, 49 Ill. 410; State v. Smith, 75 N.C. 307; Tucker v. Henniker, 41 N.H. 317; Hatch v. State, 8 Tex.App. 416; Festner v. R. R. Co., 17 Neb. 280; Rolfe v. Rumford, 66 Me. 564; Walker v. State, 6 Blackf. (Ind.) 2; Deckerson v. Burke, 25 Ga. 225; Crandall v. People, 2 Lans. 309; Sullivan v. State, 66 Ala. 48; McAdory v. State, 62 Ala. 154; Bulliner v. Peo., 95 Ill. 396; Grosse v. State, 11 Tex.App. 364. The separation of the jury was prejudicial error. Eastwood v. People, 3 Parker, Cr. Rep. 25; Com. v. McCall, 1 Va. 271; State v. Church, 64 N.W. 152; People v. Brannigan, 21 Cal. 338; Riley v. State, 9 Humph. 654; McCann v. State, 9 S. and M. 465. The burden of proof is upon the state to show that the prisoner suffered no injury by reason of the separation of the jury. Maclin v. State, 44 Ark. 115; Keenan v. State, 8 Wis. 132; State v. Prescott, 7 N.H. 287; Moss v. Com., 6 Cr. L. Mag. 88. The court has no power to authorize the separation of the jury even with the consent of the prisoner. Peiffer v. Com., 15 Pa. 466; McLain v. State, 10 Yerg. 241; Hines v. State, 8 Humph. 397; Wesley v. State, 11 Humph. 502; State v. Prescott, 7 N.H. 287; Woods v. State, 43 Miss. 369; Organ v. State, 26 Miss. 83; Eastwood v. People, 3 Parker Cr. Repts. 25. An erroneous instruction cannot be corrected by another instruction which states the law correctly. Kingen v. State, 45 Ind. 518; 2 Green Cr. Rep. 721; Kirland v. State, 43 Ind. 146, 2 Green Cr. Rep. 706; Peo. v. Wang, 54 Cal. 151; Perry v. Com., 1 Am. Cr. Repts. 272; Peo. v. Bush, 65 Cal. 129; 5 Am. Cr. Repts. 459. Where instructions are requested that correctly state the law they should be given in the form in which they are prepared. Middleton v. State, 1 Am. Cr. Repts. 194; Hamilton v. People, 1 Am. Cr. Repts. 618; Anderson v. State, 2 Am. Cr. Repts. 198; State v. Stewart, 2 Am. Cr. Repts. 603; State v. Rothschild, 3 Am. Cr. Repts. 326; Cline v. State, 5 Am. Cr. Repts. 57; State v. Hecox, 5 Am. Cr. Repts. 98; Panton v. People, 5 Am. Cr. Repts. 425; People v. Bush, 5 Am. Cr. Repts. 459; State v. Moran, 1 Green's Cr. Repts. 749; Peo. v. Anderson, 2 Green's Cr. Repts. 395.

H. G. Voss, State's Atty., J. F. Cowan, Atty. Gen'l., (Wm. P. Miller, of counsel,) for the state.

It is too late to raise any question of irregularity with respect to granting of the change of venue after verdict. Ben Krebs v. State, 8 Tex.App. 1; Williams v. State, 16 S.W 816; State v. Kindig, 39 P. 1028; State v. Gamble, 24 S.W. 1030; Hourigan v. Com., 23 S.W. 355; State v. Dusenberry, 20 S.W. 461; Burrell v. State, 28 N.E. 699; State v. Potter, 16...