State v. Maresch

Decision Date11 March 1947
Docket NumberCr. No. 198.
Citation27 N.W.2d 1,75 N.D. 229
CourtNorth Dakota Supreme Court

Rehearing Denied April 28, 1947. [Copyrighted Material Omitted]

Syllabus by the Court.

1. The sufficiency of the evidence to sustain the verdict, not challenged in the trial court, cannot be considered on an appeal from the judgment alone.

2. As a general rule expert witnesses may not be allowed to invade the province of the jury by expressing their opinions as to conclusions of law or fact upon which the decision of the case depends.

3. Where expert opinion is otherwise competent and relevant it may be based upon facts observed by the witness himself facts presented by the testimony of other witnesses or facts obtained by the expert from a combination of both sources.

4. Where the cause of an injury resulting in death is an issue in a criminal case, whether such injury could have resulted from a fall on some inanimate object is a proper field for the expression of the opinion of a qualified expert.

5. Where, on direct examination, a defendant testified to his enlistment and service in the Marine Corps and stated that he there received boot training which was the regular and usual Marine Corps training, it was within the discretion of the trial court to permit the State, on cross-examination, to inquire further concerning the defendant's training to the extent of bringing out relevant evidence regarding his special training in physical combat.

6. Where a defendant is being tried for murder in the first degree by causing the death of the decedent while the defendant was attempting to commit rape upon her and denies that he ever had intercourse with the decedent, it is not error for the trial court to exclude evidence offered by the defendant which could have no other purpose than to imply that the deceased had had sexual intercourse with others at some prior time.

7. Where the court permitted the defendant to show in considerable detail the drinking of intoxicating liquors by both the deceased and the defendant on the day prior to the decedent's death, it was not error to exclude evidence concerning drinking by the deceased on other prior occasions and her drinking habits generally.

8. Where the testimony of certain police officers discloses no prejudice or bias and they were all officers holding permanent positions under the State, County or City government and none of them were special investigators or private detectives temporarily employed to solve the particular crime for which the defendant was being tried, it was not error to refuse to give the jury a cautionary instruction to the effect that greater care should be used in weighing the testimony of police officers because of their tendency in procuring and stating evidence against the defendant.

9. Where medical experts used the word 'blow' in describing the cause of the fatal injury of the deceased and each of them explained what they meant by the use of the word 'blow', it was not error for the court to refuse to repeat or amplify those explanations in his instructions.

10. An allegation of attempt to commit a crime implies two things, an intent and an overt act which tends directly toward but falls short of actual commission.

11. It is error for the court to instruct the jury that anything evidencing an intent to violate the person of the deceased constitutes an assault with intent to commit rape.

12. Where there is evidence from which the jury might determine that the defendant admitted a circumstantial fact pointing toward his guilt but there is no evidence of any confession or admission of the commission of the crime by the defendant, it is error for the court to instruct the jury that: 'If the facts and circumstances in the evidence together with any confession or admission of the defendant, taken as a whole, prove the guilt of the defendant, beyond a reasonable doubt, then it is your duty to convict the defendant. However, if the facts and circumstances in the evidence, together with any admission or confession of the defendant, do not prove the guilt of the defendant, beyond a reasonable doubt, then it is equally your duty to acquit the defendant.' Wallace E. Warner, State's Atty., Walsh County, of Grafton, and Nels G. Johnson, Atty. Gen., for plaintiff and respondent.

W. T. DePuy and T. I. Dahl, both of Grafton, and George F. Shafer, of Bismarck, for defendant and appellant.

MORRIS, Judge.

This is an appeal from a judgment and sentence entered pursuant to a verdict of a jury finding the defendant guilty of murder in the first degree. The last brief was filed and the case finally submitted to this court on February 5, 1947. The sufficiency of the evidence to sustain the verdict was not challenged either by a motion for a new trial or a motion for an advised verdict. It was not questioned in any manner before the trial court. The rule has been long established that upon such a record the sufficiency of the evidence to sustain the verdict cannot be considered on appeal to this court from the judgment alone. State v. McClelland, 72 N.D 665, 10 N.W.2d 798; State v. Glass, 29 N.D. 620, 151 N.W. 229; State v. Fahn, 53 N.D. 203, 205 N.W. 67; State v. Johnson, 68 N.D. 236, 278 N.W. 241; State v. Mostad, 70 N.D. 73, 291 N.W. 910. We, therefore, consider the evidence only to the extent necessary to an understanding of specifications of error considered herein and the prejudicial effect of error on the rights of the defendant.

At the time of her death the deceased, Sigrun Grimson, was about twenty-two years of age. She was a graduate nurse employed in a hospital in Grafton, North Dakota. The defendant was about twenty-three years of age. He was a native of Grafton where he had completed his Junior year in high school. He had served in the United States Marine Corps from December, 1942, to June, 1944, when he was discharged because of disabilities resulting from wounds received in the invasion of Tarawa.

The defendant met the deceased shortly after his return to Grafton, about October 1, 1944. For some time preceding the death of Miss Grimson she was frequently in the company of the defendant. He spent much time with her at the Nurses' Home where she lived. They also spent much time riding or parking in an automobile until early morning hours. On other occasions they frequented taverns and drank considerable liquor.

On December 13, 1944, which was the day preceding the death of the decedent, the defendant spent some time with one LaMont in a place known as Syl's Tavern. At about 1:30 in the afternoon the defendant telephoned the deceased at the Nurses' Home. He and LaMont then drove to the Home in LaMont's car where the deceased joined them. They went back to the Tavern. From there they made two trips to a potato warehouse about a mile north of Grafton where they mixed and drank whiskey and coca cola. After the second trip LaMont left them at Syl's Tavern about 3:30 p. m. The defendant and the deceased went to another tavern where they remained until between 6 and 7 o'clock that evening. They left that Tavern in LaMont's automobile but LaMont was not with them. The automobile was not again seen until about 9:30 on the morning of Thursday, December 14th. It was then seen standing in the Grafton Park, facing west and near a row of short posts. Although the car was observed several times throughout the day no one approached it until about 1:30 o'clock that afternoon, when the Superintendent of the Light and Water Department of Grafton opened the door of the car and saw the defendant and the deceased in the back seat. The defendant acted as if he had been sleeping. He said he had been sleeping and showed no alarm or resentment at having been awakened. At about 4 o'clock two city employees were doing some work in the park and were approached by the defendant who asked them to give his car a push with their truck. After pushing the car away from the row of posts one of the employees went to the door of the car to speak to the defendant who was behind the steering wheel. At that time he first noticed the deceased on the right side of the rear seat but apparently did not realize she was dead. The city employees pushed the car to a nearby filling station. By that time they had become alarmed about the condition of the girl. The station attendant looked into the car and was also alarmed. The city employees then went to look for a policeman and eventually located the Assistant Chief of Police. In the meantime, the defendant had obtained some gas and drove away from the filling station and into the business district of the city. As he drove through an alley toward the rear of Syl's Tavern he saw a friend, stopped him and inquired if he had seen LaMont, the owner of the car. While they were talking the Assistant Chief of Police came to the car, talked to the defendant and informed him that the girl was dead. The defendant evidenced surprise. He was then taken to the county jail. An autopsy showed that the stomach of the deceased was ruptured and its contents evacuated into the chest cavity. The diaphragm was ruptured in two places and the lower left lobe of the liver was bruised. These injuries caused death.

There was a hole about six inches long in the top of the muffler of the car in which the deceased was found. An analysis of the blood of the deceased showed a 27% carbon monoxide saturation. The expert witnesses agree that this was not sufficient to cause death but their opinions are divergent with respect to the symptoms, effects and after effects of carbon monoxide poisoning. The defendant testifies that he has no recollection of leaving the tavern on the evening of December 13th or anything that occurred thereafter until he woke up in the park the...

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