State v. Knudson
| Decision Date | 13 June 1911 |
| Citation | 132 N.W. 149,21 N.D. 562 |
| Parties | STATE v. KNUDSON. |
| Court | North Dakota Supreme Court |
Counsel, in argument to the jury, must confine himself to the evidence in the case, and should not go beyond the limits of legitimate argument and comment thereon.
Where the defendant alleges misconduct on the part of the state's attorney in his argument to the jury, and relies on the same as ground for reversal, he must first seasonably object thereto and obtain a ruling from the trial court thereon, requesting the court to take action by reprimand to the counsel, instructions to the jury, or other suitable action, and if the instructions given do not sufficiently cover the point raised he should request, in writing, additional instructions.
The evidence examined, and held, that the statement of counsel was based on the evidence in the case.
Appeal from District Court, Nelson County; Chas. F. Templeton, Judge.
Simon Knudson was convicted of selling intoxicating liquors, and he appeals. Affirmed.Bangs & Robbins, for appellant. Andrew Miller, Atty. Gen., and Alfred Zuger and C. L. Young, Asst. Attys. Gen., for the State.
This appeal is prosecuted in this court on one specification of error, as follows: The state's attorney, in addressing the jury, made the following statement: “This witness (pointing to defendant) has perjured himself most damnably; deepest of all in testifying to the fact that for the past four years he has not sold any intoxicating liquors in the city of Aneta, and hasn't gone about the street with his overcoat pockets filled with beer bottles.” The information in this case charges the defendant with a felony in selling intoxicating liquors as a beverage, and that the defendant, prior thereto, had been convicted of willfully and unlawfully selling intoxicating liquors. A verdict of guilty was rendered, and the court sentenced the defendant to imprisonment in the penitentiary for one year at hard labor. From the judgment rendered herein, he appeals.The testimony for the state and for the defendant is very brief. The defendant was arrested upon complaint of one Gilbert Davis, who is the only witness for the state, and he testified that he bought three bottles of beer from the defendant in the city of Aneta, paying therefor, and that the defendant, after receiving the order for the beer, went out from the place where they met and shortly afterwards returned with the bottles of beer in his pockets, or, using the language of the witness Davis, “he carried the beer in his two hip pockets and one in his inside pocket, here.” The defendant denied the sale and denied knowing the witness, stating that so far as he could remember he never saw him before the time he went on the stand at the preliminary examination, and that he did not know his name and never had anything to do with him. The defendant lived in Aneta, and the prosecuting witness testified that he (the prosecuting witness) had been employed as a drayman in Aneta for about a month; that he had made deliveries to the defendant at defendant's house, had seen him there, talked with him on three or four different occasions in the month prior to the sale; that the defendant knew his name and called him by name; that he had traded watches with him; that he had met the defendant on the street from time to time and talked with him there; and that he had talked with him altogether from 12 to 15 times.
[1] During the argument to the jury the state's attorney made the statement set forth in the specification of error, and at the time the statement was made the counsel for defendant excepted to the statement, which exception was allowed by the court. No objection was taken to this statement other than the exception, nor was the court asked by the defendant to reprimand the counsel, nor did the defendant ask from the court any instruction to the jury to disregard this statement. In the charge to the jury, however, the court referred to this matter as follows:
The defendant claims that the statement made by the state's attorney hereinbefore quoted is of such prejudicial character as will require this court to reverse the judgment of the lower court. It will be noted that it is not alleged that the trial court made any error in the case. No complaint is made of any ruling of the court in this matter, nor of any failure of the court with reference thereto. Distinction must be drawn between legitimate comment by counsel upon the evidence of the case and the independent testimony of the counsel. 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. In doing this the largest and most liberal freedom of speech is allowed. Counsel has a right to impugn, justify, or condemn motives, basing his argument, of course, upon the evidence. He has a right to argue to the jury the credibility of the witnesses, and if a witness has been shown to have testified falsely he has a right to call the attention of the jury to this fact. Of course, there are, and must be limitations to this freedom of speech, and no counsel should ever forget his duty to the court in the administration of justice, but should conduct his case with dignity and courtesy. When he occupies the position of state's attorney his relation to the administration of justice is more pronounced. Justice to the state and the defendant should be his sole aim, and in the prosecution of his cases he should refrain from mere personal abuse. Yet he has the right within reasonable limits to denounce actions and motives of witnesses on the stand when such denunciations can fairly be inferred and drawn from the evidence in the case. It is not every extravagant statement that is prejudicial, and the mere fact that an inference from the evidence may be illogical or erroneous does not necessarily establish that his statement thereby became prejudicial. There is evidence in this case from which the counsel could fairly infer that the defendant perjured himself. The witness for the state swore to the commission of the crime; the defendant denied it. Under the testimony, if...
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Andrews v. O'Hearn, 10837
...186 N.W.2d 426 (N.D.1971); Larson v. Meyer, 135 N.W.2d 145 (N.D.1965); Quam v. Wengert, 86 N.W.2d 741 (N.D.1957); State v. Knudson, 21 N.D. 562, 132 N.W. 149 (1911). Otherwise, the objection is We have carefully reviewed the comments made by attorney Gunhus. We have also considered, as we m......
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Erickson v. Wiper
...the errors assigned upon the proceedings had in the trial court. Thompson v. Cunningham, 6 N.D. 426, 430, 71 N.W. 128; State v. Knudson, 21 N.D. 562, 132 N.W. 149. And the appellant has the burden of proving, and must a record affirmatively showing, such error. Davis v. Jacobson, 13 N.D. 43......
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Hoffer v. Burd, 7236
...in argument may make legitimate comments on the evidence but must not give any independent testimony of his own. Then in State v. Knudson, 21 N.D. 562, 132 N.W. 149, this court held that 'Where the defendant alleges misconduct on the part of the state's attorney in his argument to the jury,......
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Larson v. Meyer
...to the statement but request the court to take action by cautionary instructions to the jury or some suitable action. State v. Knudson, 21 N.D. 562, 132 N.W. 149; Quam v. Wengert, N.D., 86 N.W.2d Counsel is allowed great latitude in presenting his arguments to the jury, subject to the regul......