State v. Kerns

• Decision Date: 18 April 1924
• Citation: 50 N.D. 927,198 N.W. 698
• Parties: STATE v. KERNS.
• Court: North Dakota Supreme Court

50 N.D. 927

198 N.W. 698

STATE

v.KERNS.

Supreme Court of North Dakota.

April 18, 1924.

Syllabus by the Court.

In a criminal cause a confession made by the defendant is inadmissible unless voluntary.

Where the admissibility of a confession is challenged, the question as to whether such confession was voluntary or involuntary is one to be determined by the court, and where the evidence is conflicting such determination by the court will not be disturbed on appeal unless manifestly against the weight of the evidence.

Mere advice or admonition to speak the truth, which does not import either a threat or a promise, will not render a following confession involuntary.

Certain instructions complained of examined, and held, for reasons stated in the opinion, not erroneous.

Though an instruction standing alone may be insufficient or erroneous, it must be considered in connection with the remainder of the charge; and if the whole charge taken together correctly advises the jury as to the law the error, if any, is thereby cured.

In laying a foundation for the admission of a confession, a question whether any threats or promises were made to the defendant before he made the confession sought to be proved was not under the circumstances and for reasons stated in the opinion objectionable as calling for a conclusion.

During the course of the trial the court made certain remarks which are complained of on this appeal. The record examined, and held, for reasons stated in the opinion, that the remarks were not prejudicial.

For impeachment purposes a witness may be cross-examined as to collateral matters, and the extent and latitude of such examination is within the sound discretion of the trial court. Held, in the instant case, for reasons stated in the opinion, that there was not such an abuse of such discretion as will warrant reversal.

The conduct of the trial, the propriety of the examination of witnesses, and the order in which the evidence is offered are matters which must be left largely to the sound discretion of the trial judge, and his rulings will not be disturbed in the absence of a showing of abuse of discretion on his part.

Prejudicial error may not be predicated on account of the action of the trial court in rejectingor striking out evidence where subsequently the same evidence is received.

The granting or denying of a motion for a new trial on the ground of newly discovered evidence is a matter largely within the sound discretion of the trial court. His judgment in that respect is conclusive on this court unless it can be said that he abused his discretion. Held, in the instant case, that no abuse of discretion is shown.

Appeal from District Court, Williams County; John C. Lowe, Judge.

Harry Francis Kerns was convicted of maliciously removing a bolt from a switch on a railroad with intent to wreck train, and from judgment of conviction and order denying motion for new trial, he appeals. Affirmed.

Frank E. Fisk and Thomas F. Craven, both of Williston, for appellant.

George F. Shafer, Atty. Gen., John Thorpe, Asst. Atty. Gen., and F. W. McGuinness, State's Atty., of Williston, for the State.

NUESSLE, J.

The defendant, Harry Francis Kerns, was convicted in the district court of Williams county upon a charge (under sections 10035 and 10036, C. L. 1913) of maliciously removing a bolt from a switch on a railroad in Williams county with intent to wreck a train, thereby causing a wreck resulting in the death of two human beings. Thereafter he moved for a new trial, which motion was denied. From the judgment of conviction and from the order denying the motion for a new trial, the defendant now appeals to this court.

As grounds for reversal, appellant urges the insufficiency of the evidence to support the verdict, and assigns error on account of the rulings of the trial court as to the admission or rejection of evidence, on account of other errors of law occurring during the trial, on account of instructions given and excepted to, and on account of the denial of his motion for a new trial based on these various assignments and on a showing of newly discovered evidence. In all, appellant specifies some 68 assignments of error.

Shortly, the facts as they appear from the record are as follows:

On October 19, 1922, the defendant was making hay with his father on a quarter section of land adjoining Todd siding, on the Great Northern Railroad, in Williams county. He and his father were living on the land in question at that time. The defendant was then 19 years of age, had finished the eighth grade, but was somewhat subnormal mentally. On the evening of that day at about half past 8 o'clock a Great Northern freight train, traveling east, was wrecked at Todd. The engineer and the head brakeman riding in the cab of the engine were killed. Examination subsequent to the wreck disclosed that the switch bolt in the rod connecting the rails with the standard of the west switch had been removed and was missing, thus leaving the rails loose. The train consisted of 46 loaded cars, and was drawn by a heavy engine. The engine and 13 cars were derailed, the engine lying on its right side between 200 and 400 feet east of the switch. At the time of the wreck the train was running around 30 miles an hour. The missing switch bolt was a heavy iron bolt with a nut and a cotter key. From the testimony of the section foreman, it appears that the bolt was in place, the nut screwed on, and the cotter key inserted and spread at 3:30 on the afternoon of the wreck. A few days after, the defendant, who was working about the wreck, was taken to Williston, the county seat, by the sheriff of Williams county and some railroad detectives, for the purpose of being examined as to his knowledge of the occurrence. He was taken to the jail on Thursday, but not at once formally put under arrest. Within a day or two he was arrested on a petit larceny charge for the stealing of certain railroad property, pleaded guilty, and confined on account of such charge in the county jail. While in the county jail, and after considerable questioning by the railroad detectives and various of the county officers, both before and after his arrest on the larceny charge, he made and signed a statement to the effect that he removed the bolt from the switch for the purpose of causing a wreck, gave his reasons therefor, and the manner in which he committed the act. This statement was signed on Saturday night. In the statement he told what he had done with the bolt which was removed, and before the statement was written out and signed he went with the officers, showed them the place where he had hidden the wrench with which he had removed the bolt, and also indicated the place in the brush where he had thrown the bolt. After a considerable search by the officers and the defendant, a bolt identical with the missing switch bolt was found at the place indicated by him. The defendant was thereupon arrested and charged with the offense of which he was herein convicted. On arraignment he entered a plea of not guilty, and on the trial repudiated the confession, declared that the same had been compelled and induced by threats and promises, and denied that the same was true. On the trial it was the defendant's contention that the right wheel on the pony truck of the engine was worn and defective; that as a result of such defect the wheel “climbed” the rail, resulting in the derailment and wreck.

The appellant contends that the evidence is insufficient to justify the verdict, first, because it appears from the evidence that he was not at the switch at any time after the same was inspected by the section foreman and prior to the wreck; second, that the alleged confession was involuntary, and therefore inadmissible, and that without such confession it is not and cannot be established that the switch bolt was removed by him; third, that even though it be established that the switch bolt was removed by him that the circumstances of the wreck are such that it must be held to appear therefrom that the derailment was caused by reason of the defective wheel on the pony truck.

From the record it is clear that the statement, purporting to be the confession of the defendant and which was offered and received in evidence over the objection of the defendant, was in fact made and signed by him. We have heretofore set out in general the circumstances under which it was so made and signed and its general purport. The defendant objected to its introduction on the ground that it was involuntary, and therefore inadmissible. The court thereupon excused the jury and tried the issue as made by this objection. The examination of witnesses in this behalf was very thorough and very lengthy. The state produced numerous witnesses who testified as to the circumstances attendant on the making and signing of the confession, and the defendant himself took the stand, together with other witnesses, in an endeavor to sustain the objection. At the conclusion of the trial of the issue as thus made the court ruled:

“The court is of the opinion that the evidence relating to the confession as heard by the court in the absence of the jury establishes beyond a reasonable doubt that the alleged confession was voluntarily given, and that there is no reason for excluding it from the jury.”

Thereupon the jury were recalled and the trial of the main issue proceeded with. All of the witnesses who had testified before the court in the absence of the jury relative to the issue there being tried were recalled and testified before the jury touching the matter substantially to the same effect as before, and the confession was received in evidence notwithstanding the objection of the defendant.

[1][2] A confession is inadmissible unless voluntary. This rule is so well established that it is unnecessary to cite authorities in support thereof. But see 16 C. J. p. 717, and cases cited at note 39. In this case the question of the...