State v. Marmon, Cr. N

• Decision Date: 19 September 1967
• Docket Number: Cr. N
• Citation: 154 N.W.2d 55
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Donald MARMON and Vernon Thomas Ruckle, Defendants and Appellants. o. 337.
• Court: North Dakota Supreme Court

Page 55

154 N.W.2d 55

STATE of North Dakota, Plaintiff and Respondent, v. Donald MARMON and Vernon Thomas Ruckle, Defendants and Appellants.

Cr. No. 337.

Supreme Court of North Dakota.

Sept. 19, 1967.

Syllabus by the Court

1. Where prosecuting attorney, in objecting to certain evidence offered by one of the defendants relating to conversations which such defendant had had with the witness, stated that if the defendant had any statement he should get on the stand and make it, such statement was not error and in violation of the rule that the failure of a defendant to testify in his own behalf shall not create or raise a presumption of guilt, and that such failure to testify shall not be referred to by the prosecuting attorney or considered by the jury.

2. Prosecutor's statement, while objecting to testimony of the defendant's witness, that if the defendant had any statement he should get on the stand and make it, was not error nor prejudicial to the defendant, and especially so where the court took prompt and appropriate action by admonishing the jury to disregard it.

3. The purpose of the opening statement by the State in a criminal prosecution is to inform the jury what the case is about and to outline to the jury the proof, so that the jurors may more intelligently follow the evidence. In such statement, counsel should outline what he intends to prove, and in making such statement he should be allowed considerable latitude.

4. The opening statement of the prosecutor in a criminal prosecution will furnish grounds for reversible error only in exceptional cases, such as where it appears to be a deliberate attempt to misstate the evidence.

5. Where the State's Attorney attempts to outline the State's evidence against the accused and attempts to inform the jury what evidence the State will present, and by whom, the failure to present such proof during the trial by the witness designated does not constitute prejudicial error in the absence of a showing of bad faith or a deliberate misstatement of facts.

6. The scope of the opening statement will rest largely in the discretion of the trial court, and this court will not reverse a conviction on the ground that the opening statement was prejudicial, in the absence of a clear abuse of such discretion.

7. The uncorroborated testimony of an accomplice, standing alone, will not support a conviction. Sec. 29--21--14, N.D.C.C. However, every material fact testified to by an accomplice need not be corroborated.

8. Corroboration of testimony of an accomplice may be furnished by facts which tend to connect the defendant with the commission of the offense.

9. Where the defendant testifies, on direct examination, that he is living with his family, a question on cross-examination inquiring whether the children had been taken from his by juvenile authorities was not reversible error where the defendant denied that they had been taken from him and no further reference was made to the matter.

10. The purpose of reviewing a judgment in a criminal record is not to determine whether the record is perfect, but to determine whether the defendant has had a fair trial under the law and whether his conviction is based upon evidence establishing his guilt beyond a reasonable doubt.

11. A careful review of the record in this case shows that defendants have had a fair trial under the law and that their convictions are based upon competent evidence establishing their guilt beyond a reasonable doubt.

Helgi Johanneson, Atty. Gen., Bismarck, Q. R. Schulte, State's Atty., Stanley, and Theodore Kellogg, Sp. Asst. Atty. Gen., Dickinson, for plaintiff and respondent State.

Ella Van Berkom, Minot, for defendants and appellants.

STRUTZ, Chief Justice (on reassignment).

The defendants were charged with commission of the crime of grand larceny of livestock under the provisions of Section 12--40--03(3), North Dakota Century Code, and were found guilty by a jury. They appealed from the judgment of conviction.

A review of the facts reveals that the defendants, Marmon and Ruckle, together with one Harry Eustis, who also was charged with the crime of grand larceny but not tried with the defendants herein, had gone out at night and had shot a young beef belonging to one Lee Addicott, a neighbor of the defendant Marmon. The defendants allege that they had gone out to shine deer and, as they were driving along one of the back roads, they had seen a deer; that they turned around and drove back to where they had seen the animal, saw some eyes shining in the darkness, and, thinking the animal was the deer, the defendant Ruckle had shot at the eyes. When they went to where the animal had fallen, they found that it was a young beef. Defendants assert that, rather than leave the carcass to spoil, they bled it and put the meat in the pickup they were driving. The defendant Ruckle, with Eustis, then started for Williston, where they intended to put the carcass in the cooler until they could find its owner.

The animal which they had killed belonged to Lee Addicott, defendant Marmon's neighbor, and it bore Addicott's brand and earmark. The record discloses that the defendant Marmon had helped Addicott with the branding of his cattle and that he was acquainted with Addicott's brand.

On the way to Williston, defendant Ruckle and Eustis were stopped by game wardens who suspected that shining of deer was taking place in the breaks along the White Earth Creek in Mountrail County. A search of their vehicle disclosed the carcass of the animal which they had killed, together with knives, a cleaver, and other instruments used in killing and skinning the beef.

After having been stopped by the game wardens, the defendant Ruckle, with Eustis, continued on to Williston where they stopped at Ruckle's home, parking the vehicle on the street. Here they were apprehended by the sheriff and menbers of the Williston police force. When they were halted by the officers, the defendant Ruckle stated that the animal belonged to Eustis. He then changed his story and stated that they had purchased the animal in New Town. He later admitted that this, too, was false, and his explanation for telling these falsehoods was that he wanted to give the defendant Marmon an opportunity to contact the owner of the animal, who was believed to be a person living in Minot.

Ruckle and Eustis were taken to the State's Attorney's office where they were interrogated in the presence of the defendant Ruckle's attorney. In the State's Attorney's office, the defendant Ruckle related that the three of them had been out shining deer; that he had shot at a pair of eyes which had appeared in the beam from the headlights of their car, supposing the animal to be a deer, but that, on investigation, they discovered that he had shot a domestic animal.

Subsequent to the meeting and interrogation in the State's Attorney's office, Ruckle and Eustis took the officers to a remote area in Mountrail County where the head and the entrails of the animal which had been killed had been dumped into a deep ravine. They also helped the officers locate the hide, which had been placed in a burlap sack, weighted with rocks, and sunk in the backwaters of the Garrison Reservoir. Before disposing of the hide, they had cut out the brand, and this portion of the hide never was recovered.

The morning following the killing of the animal, the defendant Marmon called on one Vincent Cowley in Minot. The contention of the defendants was that they thought the animal which they had killed was one belonging to Cowley, who had cattle located in the general area where this animal had been shot. Defendant Ruckle testified that defendant Marmon had believed the animal killed belonged to Cowley and had said that he would go to see Cowley in Minot the following morning and report its killing. Testimony was then offered through Cowley as to what Marmon had told him when he went to Minot to report the killing of the animal. When the State's objections to these statements were sustained by the trial court, the defendants made in offer of proof, by such witness, that defendant Marmon had gone to Cowley the morning following the killing of the animal and informed him that the defendants had shot one of his cattle, and offered to pay for it; that Cowley subsequently investigated and found that he had not lost an animal; and that Cowley's investigation was based on what he had been told by Marmon.

This offer of proof was denied on the ground that Cowley's proposed testimony was based on self-serving declarations made to him by defendant Marmon and that such statements, made the day following the shooting of the animal, were not a part of the res gestae.

It was during the examination of the defendants' witness Cowley that an incident occurred which the defendants contend was prejudicial error, and on which they place much stress on this appeal. Cowley was asked whether he had had any conversation with the defendant Marmon on the morning following the killing of the animal, as to whether one of his animals was missing. One of the attorneys for the State objected to this question as immaterial, incompetent, hearsay, and self-serving, and then added:

'If Mr. Marmon has any statement he should get up on the stand himself.'

On this record, the jury returned a verdict of guilty against the defendants, Ruckle and Marmon. Their appeal to this court raises several issues which we will consider in the following order:

1. Should the court have granted a mistrial on the motion of the defendants at the time the attorney for the State referred to the fact that the defendant Marmon could take the witness stand if he wanted to produce certain evidence?

2. Was the reference to Harry Eustis, without calling him as a witness, prejudicial error as to the defendants?

3. Is the evidence sufficient as to the defendant Marmon to sustain the verdict of guilty?

4. Did the defendants receive a fair trial?

Our...