State v. Lende
| Decision Date | 01 September 1971 |
| Docket Number | Cr. N |
| Citation | 190 N.W.2d 52 |
| Parties | STATE of North Dakota, Plaintiff and Respondent, v. Donald LENDE, Sr., Defendant and Appellant. o. 415. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. The appeal in this case is from the judgment only, and brings before this Court for review any errors of law committed by the trial court which appear in the record of the action and which have been preserved and presented in the manner prescribed by statute.
2. In order that the defendant may introduce evidence of the turbulent and quarrelsome character of the victim of his assault, he first must introduce foundation evidence tending to show that he acted in self-defense.
3. An adverse ruling on a question of law cannot be used by counsel as a claim of incompetence and denial of a client's rights, and as justification for a new trial.
Eugene A. Kruger, State's Atty., and William D. Yuill, Asst. State's Atty., Fargo, for State of North Dakota.
P. W. Lanier, Jr., of Lanier & Knox, Fargo, for defendant and appellant.
This is an appeal from a judgment of conviction. The defendant was charged with the crime of assault and battery upon a peace officer, a charge established by the 1969 Legislature.
Section 12--26--04, N.D.C.C., as amended, reads:
'Any person convicted of assault or assault and battery shall be guilty of a misdemeanor, except that if such offense is committed upon a peace officer who is performing his official duties, such crime shall be a felony.'
The information charges:
'The State's Attorney for the County of Cass, in the State of North Dakota, accuses Donald Lende, Sr. of committing the crime of ASSAULT AND BATTERY and charges that heretofore, to-wit: on the 7th day of February, 1970, in the City of Fargo, County of Cass and State of North Dakota, the said defendant, Donald Lende, Sr., did wilfully, unlawfully, feloniously, and without justifiable cause or excuse, use force and violence upon the person of one Donald Lawyer, and at the said time and place, the said Donald Lawyer was employed as a peace officer by the Fargo Police Department and was performing his official duties, this in violation of Chapter 12--26 of the North Dakota Century Code as amended; This against the peace and dignity of the State of North Dakota, and contrary to the form of the Statutes in such case made and provided.'
The defendant entered a plea of not guilty, and was tried by a jury and convicted. The Court sentenced him to one year at the State Farm.
The evidence indicates that the defendant was in an alley in back of a restaurant which he operated, behaving in a disorderly manner and using vulgar and obscene language. A police officer by the name of Donald R. Lawyer was patrolling in the neighborhood of the back door of the restaurant, and a discussion developed between the police officer and the defendant which resulted in the charge made. The police officer's testimony is as follows:
'Q. What did you do?
'A. I told him he was under arrest, and I reached out with my hand like this and touched his shoulder (indicating). And I said, 'Wait a minute, Mr. Lende, you're under arrest.' And I was going to say, 'For disorderly conduct,' but I didn't--
The record indicates that the judgment of conviction was entered on August 3, 1970, and an amended notice of appeal was filed which, in addition to the appeal from the judgment, attempted to enlarge the appeal as follows:
'YOU WILL PLEASE TAKE FURTHER NOTICE, that Donald Lende, Sr., defendant above named, hereby appeals to the Supreme Court of the State of North Dakota, from the trial court's denial of the defendant's motion for directed verdict of dismissal and acquittal or advised verdict of acquittal and from the whole thereof.'
Notwithstanding the paragraph added in the amended notice of appeal, as above set forth, the defendant did not make a motion for a directed or advised verdict, nor did the Court see fit to take any action in that regard and attempt to advise the jury. Further, the defendant made no motion for a new trial or in arrest of judgment, and at no time moved to quash the information. Therefore the appeal in this case is from the judgment only, and brings before this Court for review any errors of law committed by the trial Court which appear in the record of the action and which have been preserved and presented in the manner prescribed by statute. State v. Dietz, 115 N.W.2d 1 (N.D.1962); State v. Timm, 146 N.W.2d 552 (N.D.1966); State v. McClelland, 72 N.D. 665, 10 N.W.2d 798 (1943).
Counsel for the defense at the time of argument interjected a statement to the effect that he felt that he had not competently represented the defendant in the trial. He bases this claim on the fact that the Court did not permit him to introduce certain evidence on cross-examination of the complaining witness, Lawyer, to the effect that the witness had a reputation for violence and abuse of power.
The offer of proof in connection therewith is as follows:
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...Decisions refusing to consider the sufficiency of the evidence because the matter was not raised in the trial court include State v. Lende, 190 N.W.2d 52 (N.D.1971); State v. Haider, 150 N.W.2d 71 (N.D.1967); State v. Timm, 146 N.W.2d 552 (N.D.1966); State v. Eli, 62 N.W.2d 469 (N.D.1954); ......
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...on the question of self defense, or who was the aggressor, such evidence has circumstantial value and will be received." In State v. Lende, 190 N.W.2d 52 (N.D.1971), this court held that a defendant charged with assault can introduce evidence of the "turbulent and quarrelsome character" of ......