State v. Lindeman, Cr. No. 112.

• Decision Date: 05 April 1934
• Docket Number: Cr. No. 112.
• Citation: 64 N.D. 518,254 N.W. 276
• Parties: STATE v. LINDEMAN.
• Court: North Dakota Supreme Court

64 N.D. 518

254 N.W. 276

STATE

v.LINDEMAN.

Cr. No. 112.

Supreme Court of North Dakota.

April 5, 1934.

Syllabus by the Court.

1. An order granting or refusing a new trial in a criminal action must be in writing, signed by the judge, and filed in the office of the clerk of the district court in which the action is pending, or, if made orally in open court, it must be entered carefully and correctly in the minutes of such court as provided in section 10907, Compiled Laws 1913.

2. Jurors cannot impeach their own verdict by affidavits stating what influenced them in arriving at it and cannot sustain it by affidavits stating that they were not influenced by improper matters which came before them.

3. In a prosecution for engaging in the liquor traffic, where it appears that the jury on retiring took with it a box of bottles containing alcohol, each bottle marked as an exhibit, and the contents specified on the label, which exhibits had been offered in evidence by the state and excluded by the trial judge, the possession and retention of said exhibits by the jury after retiring to deliberate on its verdict was in the instant case prejudicial error, for which there must be a new trial.

Appeal from District Court, Grand Forks County; Daniel B. Holt, Judge.

Herbert G. Lindeman was convicted of engaging in liquor traffic, and he appeals.

Judgment reversed, and new trial ordered.

Chas. A. Lyche, of Grand Forks, for appellant.

P. O. Sathre, Atty. Gen., and W. B. Arnold, State's Atty., of Grand Forks, for the State.

BURKE, Judge.

On the 22d day of June, 1933, the defendant was convicted of the crime of engaging in the liquor traffic. He promptly appealed from the judgment and also made a motion for a new trial, which motion came on for hearing on the 6th day of July, 1933, at which time the arguments and remarks of the court were taken down in shorthand by the court stenographer, and which included an oral statement of the court denying the motion for a new trial, which stenographic notes were filed with the clerk of court, but were not transcribed until the 24th day of October, 1933. Thereafter, the defendant applied to the court for an order to show cause why the said notes should not be transcribed and a proper order filed in the office of the clerk of court, so that the time for the running of the statute on appeal might be fixed and why the defendant should not have sixty days from the time of the filing of said order in which to take an appeal therefrom. This motion was also denied, and the first question in the case is: Was the lengthy oral statement made by the court in the stenographic record in the proceedings on motion for a new trial such an order that an appeal must be taken therefrom within sixty days after the same was orally made? The minutes of the court during the trial as entered by the clerk are in the record, and there is no mention of any such order in the minutes, and there was no record of such order except in the shorthand notes of the court stenographer on file.

Section 7939, Compiled Laws 1913, reads as follows: “Every direction of a court or judge made or entered in writing, and not included in a judgment, is denominated an order.”

This section is identical with section 7194 of the Idaho Code, and in the case of Spivey v. District Court, 37 Idaho, 774, 219 P. 203, 204, the court said: “It is thus evident that an order must be in writing. It may, however, be made and filed with the clerk, in which event it must be signed by the judge, or it may be entered in writing in the minutes or journal of the court. Perkins v. Loux, 14 Idaho, 607, 95 P. 694.”

In the case of Goade v. Gossett, 35 Idaho, 84, 204 P. 670, the trial judge had under consideration a motion for a new trial. He wrote a letter in which, after reciting the submission of the motion to the court and its consideration by him, he announced the decision of the court in these words, “motion for new trial will therefore be overruled.” The Idaho court cited and quoted the definition of an order and then said: “Applying this definition, it would seem that there is no room for the contention of appellant that the letter of February 4 was an order from which an appeal could be taken.” The appeal made on such alleged order was dismissed.

California has the same statute, and in 18 Cal. Jur. 662, the rule is stated as follows: “Orders of a court or judge must be made or entered in writing. Care should be exercised to see that the orders procured are entered in such terms as to express with precision the objects to be attained.”

In State of Wyoming ex rel. Tibbals v. District Court, 42 Wyo. 214, 292 P. 897, 899, 71 A. L. R. 993, at page 998, the court said: “The court, it is true, speaks only through its records (State ex rel. Stuart v. Urschel, 104 Ohio St. 172, 135 N. E. 630), and the provisions of the statute that an order of court must be placed of record must be complied with, and will, in the proper cases, as on appeal, be applied and enforced.”

20 R. C. L. 512 states the rule as follows: “There is a clear distinction between the making of an order and its entry. The order is made when the court announces it. It is entered when it is placed of record by the clerk. The general rule would seem to be that for most purposes some entry or record of an order is necessary to its completion.” The foregoing is quoted with approval by the Michigan court in Freeman v. Wayne, Probate Judge, 230 Mich. 455, 203 N. W. 158.

It is the contention of respondent that the statutory definition applies only to orders made in civil actions. It is true that the definition of an order is found in the Code of Civil Procedure, but it is a general definition and states specifically that an order is “every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order.” Code Civ. Proc. Cal. § 1003. Doubtless an oral order may be made in some cases as in the case of U. S. v. Terry (D. C.) 41 F. 771, where the court ordered the marshal to remove a disorderly person from the courtroom. This was a case that called for summary action. The offending party was disturbing the proceedings in court by loud and insulting language addressed to the presiding justice.

[1] It is clear that such an important order as that of granting or refusing a new trial should be made a part of the written record and an oral order denying or granting a new trial is not complete until it is reduced to writing, signed by the judge, and filed with the clerk of court, or if the order is made in open court, section 10907, Compiled Laws 1913, makes it the duty of the clerk to enter carefully and correctly in the minutes of such court every ruling or decision of the court upon any matter, by section 10905 and subds. 1 and 2 of section 10906 declared to be deemed excepted to and a certified copy of any or all such entries shall be and become a part of the record of said action. If the order is made in open court it is not complete and no part of the record until it is entered in the minutes of the court as provided by section 10907. Unless it is reduced to writing, signed by the judge, and filed with the clerk or entered by the clerk in the minutes of the court as provided by law, there is nothing to appeal from.

The real question in this case, however, can be determined on the appeal from the judgment. During the trial the state offered in evidence a cardboard paper box containing intoxicating liquors, labeled:

“This and contents was found by us on the 26th day of May, 1933, at the house in the city of Grand Forks, North Dakota and occupied by ------.

Dated May 26, 1933.

[Signed] J. M. Lund.”

In the lower corner of said exhibit is the notation:

“6-20-33,

[Signed] C. H. Heen, Clk.”

The said box contained twenty-four compartments in which were six full half pints and one full pint of alcohol and two half pints partly full, five empty half-pint bottles. On all of said bottles were marked, “State's Exhibit 7,” and were labeled as follows:

“This bottle and contents were found by me on 26th day of May, 1933, at 306 S. 3rd. St. in the city of Grand Forks, North Dakota and occupied by Rosina Lindeman.

Dated May 26, 1933, 9:45 P. M.

[Signed] J. M. Lund

BFB Joe Blevin”

That the initials “BFB” are in the handwriting of B. F. Benson, a patrolman of the city of Grand Forks, and husband of Mrs. B. F. Benson, who sat in this case as a member of the jury. This box with contents had been used as an exhibit in a former trial of another case. It was offered by the state in the instant case and an objection to receiving it in evidence was sustained. For some reason it was not separated from the other exhibits, and when the jury retired it was sent with the other exhibits to the jury room. There are affidavits of the clerk and of the bailiff and also of the jurors, and it is clear from the record that very damaging testimony, that had been excluded by the court, went into the jury room with other exhibits. It is claimed that it was error, under subdivision 2 of section 10917, namely: “When the jury has received out of court any evidence other than that resulting from a view of the premises, or any communication, document or paper referring to the case.”

The box with its contents, all marked as exhibits, was offered in evidence and an objection to the receipt of such box and exhibits in evidence was sustained by the court. This evidence being ruled out was just as much out of court as though it had never been offered and had never been in the possession of the prosecution. It is only evidence admitted by the trial judge that is evidence in the case in court, and evidence ruled out by the trial judge is out of the case and out of the court. The clerk of the court makes an affidavit that the said exhibits were submitted to the jurors with the other exhibits in the case, retained and returned by the jury into court with the other exhibits in the case when the...