State v. Malnourie, Cr. 253

• Citation: 67 N.W.2d 330
• Decision Date: 06 December 1954
• Docket Number: Cr. 253
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Donald MALNOURIE, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 330

67 N.W.2d 330

STATE of North Dakota, Plaintiff and Respondent, v. Donald MALNOURIE, Defendant and Appellant.

Cr. 253.

Supreme Court of North Dakota.

Dec. 6, 1954.

Syllabus by the Court.

Douglas B. Heen, Devils Lake, for defendant and appellant.

E. T. Christianson, Atty. Gen., J. K. Murray, Sp. Asst. Atty. Gen., and H. L. Malloy, State's Atty., Halliday, for plaintiff and respondent.

BURKE, Judge.

On January 17, 1953, the defendant, Malnourie, pleaded guilty to an information charging him with the crime of murder in the first degree. Following his plea he was immediately sentenced to imprisonment for a life term in the state penitentiary.

On May 27, 1953, this defendant moved the trial court to vacate the judgment and sentence made and entered in the case and to allow him to withdraw his plea of guilty. The motion was grounded upon this defendant's contentions that his plea was induced by coercion, fraud and duress and that he was denied the right of the assistance of counsel. The trial court denied this motion and defendant has appealed from the order of denial.

The defendant, Malnourie, is a three-quarter blood Indian. He has had a seventh grade education and at the time of his arraignment was twenty-four years old. He resided on the Ft. Berthold Reservation with his mother and stepfather, Mr. and Mrs. John Starr and his half-sister, Cynthia Starr. On January 1, 1953, this defendant and John Starr and Cynthia Starr left home in the family car at about eleven o'clock A.M. They arrived at Zap at about noon. There they purchased three pints of wine and commenced drinking. Later in the afternoon they stopped at Dodge where they bought some whiskey. They spent the rest of the afternoon in drinking and driving about from place to place. Early in the evening they arrived in Halliday where they bought three more bottles of wine. At Halliday, they were joined by Oscar Whiteman, who was also of Indian blood. When Whiteman entered the Starr car, he sat in the front seat with the defendant and Cynthia. At that time John Starr was asleep in the back seat apparently in a state of extreme intoxication.

According to this defendant's story, his last recollection of the events of the evening was riding around Halliday and drinking with Cynthia and Whiteman. He recovered his memory as he was walking into Richardton early the next morning. In Richardton, he 'picked up' an automobile, intending, he said, to drive back to the Reservation. About two miles north of Richardton he came upon the Starr automobile parked on the highway. John Starr was still asleep in the back seat but Cynthia and Whiteman were missing. This defendant than abandoned the car he had appropriated in Richardton and drove the Starr car to a point about two miles north of Halliday where the car became 'stuck on the highway.' This defendant then walked into Halliday to look for a ride home. Finding none he returned to the Starr car and went to sleep. At about ten o'clock A.M. a patrolman came upon the parked car and after an investigation arrested this defendant upon a charge of having an open bottle containing an alcoholic beverage in the car. This defendant was immediately taken before a justice of the peace and arraigned on this charge. He pleaded guilty and was sentenced to a term of fifteen days in the county jail at Manning.

Late on the evening of January 4th, Mrs. John Starr, mother of both this defendant and Cynthia, notified Lynn Amsden, an officer of the state highway patrol, that Cynthia had been missing since January 1st. An investigation disclosed that she had been last seen in the company of this defendant and John Starr and Oscar Whiteman. On January 7th, this defendant was moved from the county jail at Manning to the city jail at Halliday. On that afternoon he was questioned by the sheriff, Jack Pavlenko, and by the highway patrolman Amsden. On January 7th, Whiteman was taken into custody and brought to Halliday. On January 8th, both men were questioned all day long, commencing at ten o'clock in the morning. Referring to this defendant, Amsden said, 'he was asleep part of that night.' On January 9th, the questioning continued. At some time during this day, Whiteman gave the officers some information, the exact nature of which is not disclosed, that led them to believe that the body of Cynthia Starr might be found somewhere in the vicinity of the Big Flat School House, which was located about twelve miles south of Halliday. Late that afternoon the two suspects were taken out to the grounds of this school house for the purpose of locating Cynthia's body. The officers present at the school house were the sheriff, Jack Pavlenko, a deputy sheriff, Leo Lesmeister and the state patrolman, Lynn Amsden. There was also present a crowd of from ten to thirty other men, according to the varying estimates of the witnesses. In this company this defendant was asked to tell where Cynthia's body was. He replied that he did not know. There is some dispute in the evidence as to what happened next. Sheriff Pavlenko testified that this defendant's reply was impudent, that he slapped him three times with his open hand and that this defenant slipped and fell to the ground. Other witnesses testified that this defendant was not only struck and knocked to the ground by the sheriff, but also by the deputy sheriff and some of the spectators and that the blows were accompanied by demands to tell where the body was.

It is undisputed that on this occasion some of the spectators tied one of Whiteman's arms to a fence post with a chain of some sort, and his other arm to the cable of a winch on a wrecking car. He was then told he would be pulled apart if he didn't tell what had been done with Cynthia's body. Patrolman Amsden testified that he stopped this proceeding by stating, 'These two boys are going to the penitentiary anyway and there was no use of some of them going.' Sheriff Pavlenko minimizes the incident by stating that he stopped it before it was well started. There appears to be a substantial conflict in the testimony of the two officers both as to the person who stopped the incident and as to the extent to which it had been carried before it was stopped.

Thereafter the two supspects were taken back to the city hall in Halliday. The men who had been in attendance at the Big Flat School followed, and despite the hostility which they had exhibited toward the two suspects, and their actions which had at least approached mob violence, they were permitted to enter the hall and attend the continued questioning of this defendant and Whiteman. Patrolman Amsden testified that while the examination continued, audible remarks, such as, 'Make them tell,' 'If they don't tell, turn them over to the Indians' and 'burn them at the stake,' came from the crowd. He even admitted that he might have made similar remarks himself. No attempt to clear the hall or to quiet the crowd was made by any of the officers present. The examination of the suspects continued until two o'clock A.M.

The next morning, January 10th, Amsden aroused this defendant at six o'clock and took him to Richardton. Amsden had a theory that this defendant might have transferred the body of Cynthia from the Starr car to the one he had stolen in Rich ardton and the trip was made for the purpose of checking this theory. When they returned to Richardton they learned that Cynthia's body had been discovered in the vicinity of the Big Flat School. They proceeded immediately to this location and this defendant was led over to view the body with his hands cuffed behind his back. According to this defendant, when he saw his sister's body he broke down and cried, and in order to get away from the harrowing scene admitted responsibility for her death. The officers present all state that he 'tried to put on an act' and admitted that he killed her. Later that afternoon, defendant was taken to the office of the state's attorney where, after a conference with the officers he signed a statement admitting that he killed Cynthia Starr by hitting her on the head with a wine bottle. At this conference he at first denied any knowledge of the means by which Cynthia met her death. Besides the defendant, there were present H. L. Malloy, the state's attorney, Jack Pavlenko, the...