State v. Lyon, 58.

• Decision Date: 31 March 1930
• Docket Number: No. 58.,58.
• Parties: STATE v. LYON.
• Court: North Dakota Supreme Court

59 N.D. 374

230 N.W. 1

STATE

v.LYON.

No. 58.

Supreme Court of North Dakota.

March 31, 1930.

Syllabus by the Court.

The evidence is reviewed and found amply sufficient to justify the verdict.

Where a defendant claims he was elsewhere at the time the offense charged is said to have been committed, it is not error to permit an extensive examination of his movements within a reasonable time before and after the time of the offense.

Errors in ruling on the admission or rejection of testimony are not grounds for setting aside a verdict, when it appears clearly no prejudice resulted to the defendant.

It is not error to limit the cross-examination of a mere witness to the subject on which he was examined on direct.

It is not error to deny a motion for a new trial when the conviction is clearly sustained by the evidence and no reversible error is shown.

Appeal from Ward County Court; William Murray, Judge.

F. C. Lyon was convicted of reckless driving, and he appeals.

Affirmed.

W. C. Cull, of Garrison, for appellant.

B. A. Dickinson, State's Atty., H. E. Johnson, Asst. State's Atty., both of Minot, and Harold Shaft, Asst. Atty. Gen., for the State.

BURR, J.

The defendant was convicted of reckless driving. A motion for new trial was denied, and he appeals from the judgment and from the order denying a new trial. The defendant says the evidence is insufficient to justify the verdict.

[1] The record shows the defendant was an independent salesman, taking orders for Chevrolet cars handled by the Reuter Motor Company, of Garrison, N. D. On June 2, 1929, K., with his wife and children, and with M., with his wife and children, was in an Oldsmobile car that had hub caps painted red. About 9 p. m. he was driving north on highway No. 6. Six or seven miles south of Minot, he overtook and passed a Ford car and a Chevrolet coach, which “was barely coaching along.” It was a new car, carried no license plate, and the spare had a cover on which there was some printing. M. said the inscription was “Reuter Motor Company, Garrison, North Dakota.” The Ford passed the Chevrolet, and then the driver of the Chevrolet speeded up and overtook the Ford and K. The latter started crowding over to “his own side of the road.” The driver of the Chevrolet sounded no horn, and in passing K.'s car struck it on the left front wheel and fender, driving the Oldsmobile across the road into the ditch, against a telephone pole, and speeded on. The Oldsmobile was wrecked. Some of its passengers were rendered unconscious and seriously injured. K. did not notice how many were in the Chevrolet. The driver of the Ford car came up, and took some of the injured into Minot. In Minot a search was made for a Chevrolet car corresponding to the one involved. About 2 a. m. they found on the streets of Minot a Chevrolet car practically new, with no license plate, with a right rear fender “smashed clean back like he had hooked something,” with streaks of red paint-not fresh paint-smeared on the right rear wheel, and carrying a spare with a cover on which was printed “Reuter Motor Company, Garrison, North Dakota.” This Chevrolet car was removed to a garage, and next morning was claimed by the defendant, who came to the police station in search of his car.

One Slocum, the driver of the Ford car, testified that this Chevrolet was the only car from Garrison ahead of him that he saw; that it was quite dark and he saw it when his lights struck it; that it was a new car, with no license plate; there was a cover on the spare tire, with the inscription, “Reuter Motor Company of Garrison, North Dakota”; the Chevrolet passed him on highway No. 6 south of Minot, and “it turned sharp in in front” of him so as to crowd him out so he “steered kind of into the ditch and got away”; that it then slowed down to about ten miles an hour; he then passed the Chevrolet, and the Chevrolet again passed him and slowed down, repeating the same tactics, apparently trying to hold him back; he saw two in the front seat of this car, and, if there were any in the back seat, they were not sitting up; when the Chevrolet came up to the Oldsmobile car, the latter “pulled over to the right side of the road, and the Chevrolet speeded up and come right around it, and, when they got about even, they turned right around-to the front-he cut right in front of the Oldsmobile”; he saw the Chevrolet strike the Oldsmobile and drive it into the ditch and speed on; he stopped and took some of the occupants of the Oldsmobile to Minot; next morning he saw the same Chevrolet in the Citizens' Garage in Minot (the car claimed by the defendant); he examined it and found the right rear fender bent and the hub cap damaged and with red paint on it which was not put on by any manufacturer, but looked as if it had “rubbed so hard on the other one that it had scraped it off”; he heard the defendant say he drove over that road and “it wasn't him” who hit the other car.

One N., police sergeant in Minot, testified that on the morning of the third of June the defendant came looking for his car, and that he and one Stanley had a conversation with the defendant; that defendant said he came from Garrison the evening before; that something had happened to his fender and the hub cap on the right rear wheel, and that this was caused by “some party was driving ahead of him on the road, going north towards Minot, and that they were driving right square in the middle of the road, and wouldn't give him the road, and in passing them he knocked his fender on this car”; that “he said he stopped and bawled them out and said why they did not give him the road, why they did not give somebody else a chance or something to that effect”; that there was another man with the defendant, and both stated “they had bumped against another car.”

Stanley testified this conversation took place between 7:30 and 8 o'clock in the morning, and he could not remember what the man said; that at the preliminary examination he testified that there was “red paint on the hub cap and a little green paint on the edge of the fender of the defendant's car when he saw it that morning and he could tell from the injury to the hub cap of the defendant's car that it was hit from the front.”

K. testified he was present when the defendant had the conversation with the police sergeant and heard the defendant say that, after bumping the car, “he stopped and got off the car and told him (the driver of the other car) what was he doing on the wrong side of the road,” and “bawled the fellow out and what was he doing on the wrong side of the road.”

M., who was with K. in the Oldsmobile, testified he saw two men in the Chevrolet, if there were more he did not see them; that K. swung over to the right to let the car pass; that he saw red paint on the Chevrolet in Minot; he knew this was the car that hit them; he heard the conversation with the police sergeant and that the defendant made the statement about stopping and “bawling out” the other fellow.

Mrs. A. testified she was in the defendant's car from Garrison to Minot; that they left Garrison “around eight-thirty or nine o'clock”; that there were four of them in the car; that the defendant and one Sorenson occupied the front seat, and she and one Taylor the back seat; that when from one to ten miles from Minot the defendant's car struck a car in which there were women and children; that she saw this car “swerve to the right side of the road and then straight on again”; that it had lights and she heard screams from the occupants; that the defendant “passed a Ford car immediately prior to this accident”; that it was dark when this happened; that the defendant and his company got into Minot at dark-“it had been dark before we reached Minot.” Later she said “it was very dark.”

The defendant says that some time in the evening of June 2d he took a new Chevrolet car from the garage of the Reuter Motor Company of Garrison, N. D., without leave from the company; that between 6:30 and 7 in the evening he, together with S. and T. left Garrison and drove around here and there hunting gophers; that they had a .22 rifle with them for hunting gophers, but they did not take it back with them because some one must have taken it; that they were “out for an airing” and some one suggested to go to Minot. He said: “Well, there is a party that I know, he and his wife they live in Garrison, and I could name them, and I could have had them here, I drove up behind them, he was going slow; I know him pretty well, and I thought I would have some fun with him, just like I did last Sunday, gave him a little bump, and it made him mad for a second until he found out who it was, and Mr. Nielson, I think, went a little far when he testified to what he did there”; that he knew it would make the man a little sore, “and that is why I bumped into him”; that all he did was to hit the rear bumper of this man's car with his front bumper. He said it was not K.'s car he struck; that he bumped one car only; that he got into Minot between 8:30 and 9 o'clock; that he went that evening and visited at the home of one R.; that the Chevrolet he drove had no license on it. When asked if he had told the police sergeant that he “had hit a car out on the road coming into Minot, he said, I told them I had bumped one, yes.” Later he said this was halfway to Max from Garrison where it happened. He admitted that he took home with him the car which was put in the garage at Minot, and which the state's witnesses say was the car that injured them. He disputed the statements of the police sergeant, Stanley, K., and M., that he had “stopped his car and bawled the fellow out that was driving the other car. He says he did not stop his car when he bumped the other car, thus agreeing with the state's witnesses when they say the offender did not stop. He does not deny he told the sergeant the damage to his fender was caused at that time, and personally gives no explanation for the injury...