State v. Kirsch
| Decision Date | 15 July 1936 |
| Docket Number | Cr. 133 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; M. J. Englert, Judge. The defendant, convicted of the offense of transporting intoxicating liquor, appeals.
Karl Kirsch was convicted of transporting intoxicating liquors and he appeals.
Affirmed.
Syllabus by the Court.
1. In a prosecution for a violation of the state liquor law, the record is examined, and it is held, for reasons stated in the opinion, that certain rulings of the trial court touching the admission of evidence were not erroneous.
2. A question calling for the conclusion of a witness as to what others " considered" the contents of certain containers to be is objectionable as calling for a conclusion not based on facts. Flora v. Mathwig, 19 N.D. 4, 121 N.W. 63.
3. The question of the propriety of the argument of counsel to a jury is addressed to the sound discretion of the trial court and the ruling of the trial court with respect thereto will not be disturbed, except in case of abuse of such discretion. The record in the instant case is examined, and it is held, for reasons stated in the opinion, that there was no abuse of discretion on the part of the trial court.
4. Where objections to the argument of opposing counsel are not interposed until after the argument is concluded, and no record is made showing the statements to which exception is taken, the action of the trial court in denying a motion for a new trial predicated on error because of such argument will not be disturbed.
5. Section 10145b24, 1925 Supplement, making the offense of transporting intoxicating liquor a felony " * * * if the evidence in such case convinces the court that the person convicted of transporting intoxicating liquors in violation of this act, was in charge of and used any * * * automobile * * * or conveyance, not owned by him or without permission of the owner, or when such vehicle or conveyance so used was mortgaged property * * *" is construed, and it is held that the words " the court" are used therein in the sense of the judge and the jury, and that so construed the statute is valid as against the contention that it violates section 7 of the North Dakota Constitution guaranteeing the right of trial by jury.
E A. Weston, for appellant.
It is error to withdraw from the jury's consideration a material issue of fact. Morrill v. McNeill, 3 Neb. 220, 91 N.W. 602.
All questions of fact and effect of evidence are for the jury. Modlin v. C.L. Jones & Co. 84 Neb. 551, 121 N.W. 984; Brody v. Chittenden, 106 Iowa 340, 76 N.W. 740.
The decision of every issue of fact is exclusively for the jury. Scow v. Farmers & M. Sav. Bank, 136 Iowa 1, 111 N.W. 32.
The judge and jury are respectively independent in determining questions of law and fact, and neither can invade the other's province. Warwick v. Elsey, 47 Mich. 10, 10 N.W. 57.
P. O. Sathre, Attorney General, A. R. Bergesen, State's Attorney, and Roy K. Redetzke, Assistant State's Attorney, for respondent.
The normal function of a witness is merely to state facts within his personal knowledge and under ordinary circumstances his opinion or conclusion with respect to matters in issue or relevant to the issue cannot be received. 22 C.J. 485; State v. Cramer, 49 S.D. 856, 206 N.W. 468; Flora v. Mathwig, 18 N.D. 4, 121 N.W. 63.
The right of argument on the testimony is one which exists in the trial of cases in our courts, in order that each side represented may, as fully and fairly as possible, present the facts so that the truth may be ascertained. State v. Knudsen, 21 N.D. 565.
It is not improper for the prosecuting attorney to remark that testimony for the prosecution is unexplained or uncontradicted, especially where the jury are instructed to disregard such comment as bearing upon accused's failure to testify. 16 C.J. 903; People v. McLeod, 30 Cal.App. 435, 158 P. 506; State v. Riley, 177 Iowa 313, 158 N.W. 570; State v. Crawford, 95 Minn. 467, 104 N.W. 295; State v. Landers, 21 S.D. 606, 114 N.W. 717; People v. McMann, 244 Ill. 45, 91 N.E. 104.
The term "court" may include a judge and jury, as well as a judge and a clerk. 15 C.J. 716.
The word "court" in the statute is used in its generic sense and includes both judge and jury in a case where a jury is present. People v. Molineaux, 16 N.Y. 264, 61 N.E. 286; Illinois C.R. Co. v. Crider, 91 Tenn. 489, 19 S.W. 618; People v. Barrett, 56 Hun, 351, 9 N.Y.S. 321.
Every statute must be construed with reference to the policy intended to be accomplished by it. State v. Seigfried, 40 N.D. 67, 168 N.W. 62.
When a statute is susceptible of two constructions, one of which will render it valid and another which will render it unconstitutional and void, the former construction will be adopted. State v. Taylor, N.D. , 156 N.W. 561.
The defendant was convicted on a charge, under § 10145b24, 1925 Supplement, of engaging in the liquor traffic. Thereafter he moved for a new trial. The motion was denied. Whereupon he perfected the instant appeal.
The facts are substantially as follows: On March 14, 1933, Karl Kirsch the defendant, Mike Walsh, John Flom, Swede Olson, and another man, unloaded a box car which stood on a railroad siding in Fargo. The freight thus unloaded consisted of a large number of 55 gallon steel containers. These containers were black with yellow ends. Outwardly they were all alike. They were unloaded, 19 into a Chevrolet truck, 29 into a closed van, and the remainder into another van. After they were thus unloaded the defendant drove the Chevrolet truck and its load away. A short distance from the place of unloading, he was seen by the sheriff of Cass county and two of his deputies who drove up in an automobile. They were suspicious of the defendant and his load so they followed him for some distance. They finally drove along side of the truck, told him they were from the sheriff's office, and ordered him to stop. He paid no attention to this command but hastened on his way. He failed to observe the stop sign on an arterial highway and drove on through. The officers again ordered him to stop but he did not. Some blocks further on he suddenly stopped, took the ignition key, leaped from the truck, ran down the street and in between some houses situated thereon. The officers ordered him to halt but he did not. They pursued but were unable to find him. Thereafter, so far as the record shows, he was not seen again in Fargo until in December, 1934, when the sheriff of Cass county arrested him as he stepped from an incoming train when it stopped at the Fargo station.
After the defendant abandoned the truck, the officers took it in charge. When examined the containers were found to contain potable alcohol. At the trial of the case the state introduced evidence showing the defendant did not own the truck in question and that it was at that time subject to mortgage.
The two vans into which the remainder of the carload was loaded were also driven away from the siding. The van containing the 29 containers was driven by John Flom to the Stenberg farm some distance north of Fargo and there unloaded. After this was done the driver returned with the van to Fargo. At the direction of Swede Olson who had accompanied him, he followed a different route from that which he had taken on the way out. A short distance from the farm where the containers were unloaded, the van was met by an automobile driven by the defendant. The van stopped after some conversation between the driver and Olson. The latter left the van, got in with the defendant and the automobile drove away. On these facts the jury returned a verdict of guilty of the offense of engaging in the liquor traffic by transporting liquor in a conveyance not owned by him, such conveyance being then and there subject to mortgage, under section 10145b24, 1925 Supplement. Thereafter the defendant moved for a new trial, which motion was denied. He then perfected the instant appeal, grounding the same on error claimed because of rulings on matters of evidence, because of the argument of the state's attorney to the jury, and by reason of instructions given by the court to the jury.
The defendant first insists that the court erred in admitting testimony concerning what took place when the defendant met the van as it was returning from the Stenberg farm to Fargo and the conversation then had between Swede Olson and the driver of the van.
It seems to us that the state's evidence showing that the defendant met the van and that Olson left it and rode away with him was properly admissible in evidence. The record discloses that Olson and the defendant were engaged with others in unloading the containers from the box car. The containers in the Chevrolet truck contained alcohol. The defendant, followed by the officers, refused to stop until he could stop and escape. He ran, eluded the officers, and thereafter, apparently knowing where Olson had gone with the loaded van, sought Olson and drove away with him. Certainly all of these circumstances were relevant to the issue on trial. See State v. Heaton, 56 N.D. 357, 217 N.W. 531. With respect to the conversation had between Olson and the driver of the van, the record discloses that no objection was made to the admission of the testimony at the time it was received. Thereafter, however, certain questions seeking to elicit testimony of similar import were objected to. These objections were sustained and the testimony thus elicited was stricken out. So there was no error in these respects of which the defendant can now complain.
Tom Walsh, one...
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