State v. McEnroe
| Decision Date | 09 December 1938 |
| Docket Number | Cr. 160 |
| Citation | 283 N.W. 57,68 N.D. 615 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. In passing upon a motion for a new trial the trial court is clothed with a wide discretion and his determination in that regard will not be disturbed unless there is an abuse of such discretion.
2. Where a motion for a new trial is granted a stronger showing must be made on appeal in order to secure a reversal than would be required where the motion is denied.
3. The record in the instant case is examined, and it is held that there was no abuse of discretion on the part of the trial court in granting the motion for a new trial.
4. Under section 61, Constitution of North Dakota, providing that " No bill shall embrace more than one subject which shall be expressed in its title * * *" any matter may be included in an act which relates exclusively to, or is germane or auxiliary to, the subject expressed in the title of the act.
5. Subsection (3) of section 40, chapter 94, Session Laws 1931 is construed and is held to create but one offense that may be perpetrated in the several modes described therein.
6. Where a statute declares an act unlawful when perpetrated in any one or all of several modes, the information may charge the act in separate counts, basing each count upon the different modes specified. State v. Bickford, 28 N.D. 36, 147 N.W. 407, Ann.Cas.1916D, 140.
7. The information in the instant case is examined and it is held, for reasons stated in the opinion, that the same does not state facts sufficient to constitute a public offense.
Appeal from District Court, Cass County; M. J. Englert, Judge.
T. H McEnroe was convicted of making a false report of the pecuniary condition of a building and loan association. From an order granting a new trial, the State appeals.
Order affirmed.
P. O. Sathre, Attorney General, Milton K. Higgins, Assistant Attorney General, A. R. Bergesen, State's Attorney, and Odin J. Strandness, Assistant State's Attorney, for appellant.
If a statute makes criminal the doing of this or that, mentioning several things disjunctively, there is but one offense which may be committed in different ways, and in most instances all may be charged in a single count. State v. Lonne, 15 N.D. 275, 107 N.W. 524; note in 51 L.R.A.(N.S.) 133.
In those cases in which the act necessarily includes the intent, it is sufficient to aver the act in apt and technical terms and the intent will be inferred. 31 C.J. 696.
When one who has made a false statement is advised by the indictment of the facts detailed, he is advised of the elements of the crime of which he is accused. Rosenberg v. State, 212 Wis. 434, 249 N.W. 545.
The differences between the caption and the charge and that it is the charge as particularly set forth and described in the body of the information that is controlling. State v. Bossart, 62 N.D. 11, 241 N.W. 78.
"Concur" means a consent evidenced in some manner, more active than mere acquiescence or silent submission. Dillon v. Scofield, 11 Neb. 419, 9 N.W. 554.
Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue. State v. Heaton, 56 N.D. 357, 217 N.W. 531; State v. Berenson, 65 N.D. 480, 260 N.W. 256.
The law regards as relevant all facts which tend to illustrate the credibility of the witness or which may enable the jury to determine the weight of his testimony. State v. Kent, 5 N.D. 516, 67 N.W. 1052; State v. Fury, 53 N.D. 333, 205 N.W. 877; Underhill, Crim. Ev. 4th ed. p. 885.
There is a wide distinction between evidence which affects the general credibility of a witness and evidence which affects the witness' testimony in a specific case. State v. Malmberg, 14 N.D. 523, 105 N.W. 614; State v. Patterson, 112 Kan. 165, 210 P. 654.
The making of a report does not mean the physical or manual act of writing or transcribing it nor does it mean the signing of or the swearing to the report but is the issuance of it. State v. O'Neil (Idaho) 135 P. 60; Re Count De Toulouse Lautrez, 43 C.C.A. 42, 102 F. 878; Re Aldridge, 168 F. 93.
If the testimony of the accomplice be corroborated as to some material fact, the jury may infer that he spoke the truth as to all. State v. Smith, 51 N.D. 130, 199 N.W. 187; State v. Reilly, 22 N.D. 353, 133 N.W. 914.
Shure & Murphy, for respondent; T. H. McEnroe, in pro. per.
Motion for a new trial is addressed to the sound discretion of the trial court and his determination will not be disturbed unless there is shown conclusively an abuse of that discretion. State v. Strong, 52 N.D. 197, 201 N.W. 858; State v. Christman, 32 N.D. 105, 153 N.W. 26.
The headings or headlines of a statute should be given effect as though they were set forth in the body of the act. 59 C.J. 1008, note 6; State v. Johnson, 24 S.D. 590, 124 N.W. 847; Ex parte Wilson, 158 P. 1050; Olson v. Erickson, 56 N.D. 468, 217 N.W. 841.
The book entries offered in this case were inadmissible as against the defendant. Rudd v. Robinson, 126 N.Y. 113, 26 N.E. 1046, 12 L.R.A. 473, 22 Am. St. Rep. 816; Trainor v. Bank, 204 Ill. 616, 68 N.E. 650; State v. McFarlin (Nev.) 176 P. 371; People v. Blackman, 127 Cal. 248, 59 P. 573; 22 C.J. 898; 2 Wigmore, Ev. 2d ed. 573.
Where the testimony of the witnesses for the state is inconsistent and discredited and incredible and upon the whole case it appears that injustice might be done, a new trial should be granted. State v. Strong, 52 N.D. 197, 201 N.W. 858; State v. Christman, 32 N.D. 105, 153 N.W. 26; State v. Weber, 49 N.D. 325, 191 N.W. 610.
If it is manifest that the jury has found against the clear weight of the evidence and that the party asking for a new trial has not, in all probability, had a fair trial, nor received substantial justice, it is an imperative duty to set aside the verdict and grant a new trial. State v. Stepp, 48 N.D. 567, 185 N.W. 812; Haynes, New Trial & App. § 97; State v. Hauser, 12 N.D. 495, 92 N.W. 352.
It is a rule in this state that if the decision of the court be correct, the reasons assigned are immaterial. Sargent v. Kindred, 5 N.D. 8, 63 N.W. 151; Olson v. Wetzstein, 55 N.D. 794, 215 N.W. 280.
An order granting a new trial will not be set aside except for a clear abuse of discretion. State v. Hauser, 12 N.D. 495, 98 N.W. 352; State v. Stepp, 48 N.D. 566, 185 N.W. 812; State v. Vogt, 57 N.D. 335, 221 N.W. 887.
Nuessle, J. Christianson, Ch. J., and Burr and Morris JJ., concur. Sathre, J., being disqualified, did not participate, Hon. Harvey J. Miller, Judge of Sixth Judicial District, sitting in his stead. Miller, Dist. J. (dissenting in part).
The defendant McEnroe was informed against on a charge of violating subsection 3 of § 40 of chapter 94, Session Laws 1931, which provides that a director, officer, agent or employee of any building and loan association who wilfully makes or concurs in making or publishing any written report, exhibition or statement of its affairs or pecuniary condition containing any material statement which is false, shall be guilty of a felony. The defendant was tried on this charge and a verdict of guilty was returned against him. He moved in arrest of judgment but this motion was denied and judgment was entered on the verdict. He then made a motion for a new trial, which was granted, and a new trial was ordered. Thereupon the state perfected the instant appeal.
Chapter 94, Session Laws 1931, is entitled "An act to provide for the government and regulation of building and loan associations in the state of North Dakota; to provide for the organization and operation of such associations; and (a repeal clause)." Pursuant to the terms of this chapter domestic building and loan associations may be incorporated and do business as such within the state of North Dakota. Foreign building and loan associations complying with the requirements of the provisions of the chapter may likewise do business within the state. Sections 38, 39 and 40 thereof, with which we are particularly concerned, read as follows:
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