State v. McCarty

• Decision Date: 01 June 1923
• Citation: 49 N.D. 912,194 N.W. 335
• Parties: STATE v. McCARTY.
• Court: North Dakota Supreme Court

49 N.D. 912

194 N.W. 335

STATE

v.McCARTY.

Supreme Court of North Dakota.

June 1, 1923.

Syllabus by the Court.

In a prosecution for the larceny of certain calves, it is held, for reasons stated in the opinion, that the objection made to the jury panel because it was dismissed and recalled is without merit.

The testimony of two witnesses, whose attendance could not be procured, as given at a former trial was properly admitted.

The admission of certain rebuttal testimony concerning the commission of other larcenies was not erroneous.

Appeal from District Court, Hettinger County; Nuessle, Judge.

Clifford A. McCarty was convicted of grand larceny, and he appeals. Affirmed.H. E. Haney, of Belfield, for appellant.

J. P. Cain, State Sp. Pros., of Dickinson, for the State.

PER CURIAM.

This is a prosecution for the grand larceny of certain calves. In June, 1920, a jury in Stark county returned a verdict of guilty against the defendant. Upon appeal from the judgment of conviction, this court, in April, 1921, granted a new trial for errors in instructions. State v. McCarty, 47 N. D. 523, 182 N. W. 754. The new trial was had in Hettinger county in December, 1921. Again the jury found defendant to be guilty. Defendant has appealed from the judgment of conviction. The facts have been set forth in the former opinion. They are substantially the same in the present record. In general, the basis of the prosecution is that defendant arranged with two confessing accomplices to steal certain unbranded calves on a ranch north of Belfield, N. D., and to transport the same about 18 miles distant southwest to defendant's ranch; that, pursuant to this arrangement, six calves, on November 16, 1918, in the nighttime were taken and transported to defendant's ranch; that defendant received the same and paid to these parties $100 for their services.

[1] Defendant maintains that there is no corroboration of the testimony of the two parties who took these calves. This contention has been answered by the former opinion of this court. State v. McCarty, 47 N. D. 523, 182 N. W. 754. Defendant made objection to the jury panel. From the record it appears that the trial court dismissed the jury, but within an hour, upon learning that this court had designated Judge Nuessle, now an Associate Justice of this court, to try the case, recalled the jury. The court had not adjourned. From the record it further appears that both parties passed peremptory challenge and stated to the court that they were satisfied with the jury. This objection, accordingly, is without merit.

[2] In the record it appears that the testimony of one Leeper and Jacobson, given at the former trial, was admitted in evidence and read to the jury. Further, it appears that Leeper had been sick in bed for some time, and his attendance could not be procured; that attempts were made to serve subpœna upon Jacobson, but he could not be found. There was further testimony to the effect that this Jacobson was in Montana at the time of the trial. We are satisfied that the court properly received this evidence. Felton v. Midland Continental Ry., 32 N. D. 223, 237, 155 N. W. 23;State v. Moeller, 24 N. D. 165, 138 N. W. 981; see note, 25 L. R. A. (N. S.) 868. The court also received in evidence a ledger sheet of a bank which showed that on November 18, 1918, a check for $100 was charged to his account. This exhibit had...