State v. Moe

• Decision Date: 02 June 1967
• Docket Number: Cr. 353
• Citation: 151 N.W.2d 310
• Parties: STATE of North Dakota, Respondent, v. Ernest Oliver MOE, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 310

151 N.W.2d 310

STATE of North Dakota, Respondent, v. Ernest Oliver MOE, Defendant and Appellant.

Cr. 353.

Supreme Court of North Dakota.

June 2, 1967.

Syllabus by the Court

1. To determine whether the evidence was sufficient to support the verdict, the Supreme Court must view the evidence in the light most favorable to the verdict.

2. Being intoxicated upon a public highway is a violation of § 5--01--09, N.D.C.C., which makes being intoxicated in a public place a public offense.

3. A peace officer, without a warrant, may arrest a person for a public offense committed or attempted in his presence. § 29--06--15, N.D.C.C.

4. Evidence is competent when it comes from such a source and is in such form that it is held proper to admit it.

5. Evidence is relevant when it is persuasive or indicative that a fact in controversy did or did not exist because the conclusion in question may be logically inferred from the evidence.

6. The determination of whether evidence is too remote to be relevant is left to the discretion of the trial judge, and his decision will not be reversed in the absence of clear proof of an abuse of that discretion.

7. The testimony surrounding what took place in the courtroom and the police station, which was sought to be excluded, has been examined, and it is held that it is competent and relevant, and thus that there was no error in denying the motion to exclude it.

8. A witness may be impeached on cross-examination by inquiries as to collateral facts tending to incriminate, disgrace, or degrade him, and, if such an inquiry is as to previous conviction on account of a criminal offense, it is not confined to conviction for felony.

9. It is error to permit cross-examination for the purpose of impeachment over objection as to a crime of which a witness has been convicted beyond the name of the crime, the time and place of conviction, and the punishment. Accordingly, it is held that the trial court erred, under the circumstances of this case, in permitting the cross-examination of the witness to extend beyond those points. However, this error has been examined and is found to be non-prejudicial, because it did not affect a substantial right of the defendant.

10. The trial court did not commit prejudicial error by including in the charge to the jury a detailed statement of the powers of the highway patrol.

11. Considering the events which led up to the statement by the trial court that there was no question in the court's mind that the witness would testify truthfully, whether he was testifying for the State or for the defendant, it is held that the statement did not prejudice the defendant and thus did not constitute grounds for a new trial.

Ella Van Berkom, Minot, for appellant.

Ray H. Walton, State's Atty., Williston, for respondent during trial in County Court with Increased Jurisdiction.

LeRoy P. Anseth, State's Atty., Williston, for respondent on appeal.

ERICKSTAD, Judge.

The defendant, Ernest Oliver Moe, appeals to this court from a judgment of conviction made and entered on October 26, 1966, in the County Court with Increased Jurisdiction of Williams County. The judgment was based on a jury verdict which found Mr. Moe guilty of the crime of resisting an officer in the performance of his duty.

The pertinent part of the criminal complaint reads as follows:

Arnold Schimke, being first duly sworn, says that on the 16th day of May, A.D., 1966, near Tioga in said County, the above-named Defendant did commit the crime of Resisting an Officer (12--08--21 NDCC) committed as follows, to-wit: That the Said Defendant, Ernest Oliver Moe, did by the use of force and violence, knowingly resist an executive officer, to-wit: Arnold Schimke, Sergeant of the North Dakota Highway Patrol of Williston, North Dakota, in the performance of his duty. * * *

This being a jury case, to determine whether the evidence was sufficient to support the verdict we must view the evidence in the light most favorable to the verdict. State v. Loyland, 149 N.W.2d 713 (N.D.1967); State v. Carroll, 123 N.W.2d 659 (N.D.1963); Christianson v. United States, 226 F.2d 646 (8th Cir. 1955), cert. denied 350 U.S. 994, 76 S.Ct. 543, 100 L.Ed. 859.

Considering the evidence in that light, we believe that the jury could reasonably have found that the facts were as follows:

The complaining witness, Sgt. Arnold Schimke of the State Highway Patrol, on May 16, 1966, received a report from a truck driver of erratic operation of a certain vehicle, which the truck driver described to him. Through his two-way radio he called the Tioga police chief, Mr. Joey Peterson, at about 6:30 or 6:40 p.m. and asked for his assistance in finding the vehicle.

Mr. Peterson, while driving east on U.S. Highway 2 approximately one mile east of the junction of Highway 2 and State Highway 40, sighted a red Chevrolet which fit the description of the wanted vehicle. This car, which was traveling west on Highway 2, shortly thereafter turned onto a county road and proceeded north. Mr. Peterson turned his car around on the highway, overtook the other car, and stopped it by the use of his flashing light.

Sgt. Schimke, who was traveling west on Highway 2, saw Mr. Peterson follow the Chevrolet off Highway 2 onto the county road, and he also turned onto the county road and drove alongside the Chevrolet shortly after it had stopped. He then got out of his patrol car, walked over to the driver's side of the Chevrolet, and asked the driver for his driver's license. The driver, Larry Dokken, aged twenty-one at the time of the trial, surrendered to the highway patrolman a North Dakota driver's permit which allowed him to drive only when a licensed driver was seated next to him in the vehicle. Mr. Dokken testified that he also gave the highway patrolman his Minnesota driver's license.

Sgt. Schimke asked the passenger, Mr. Moe, for his driver's license. Mr. Moe, who by then was standing on the highway, refused to surrender his license, apparently on the ground that he was not driving the vehicle. From his language, appearance, and conduct, it was concluded by Sgt. Schimke that Mr. Moe was under the influence of intoxicating liquor.

Sgt. Schimke then informed Mr. Moe that he was under arrest for being intoxicated on a public highway, and Mr. Moe, using offensive language, took off his coat and informed the two officers that if they wanted to arrest him, they were going to have to take him in 'a down position.' Sgt. Schimke then walked over and placed his hand on Mr. Moe's shoulder and said: 'Mr. Moe, you are under arrest,' and 'I would like to have you come along peacefully.'

Mr. Moe assumed a fighter's stance and in very derogatory language challenged the officers to come and get him; then, cursing he backed away from the sergeant and fell into the ditch.

While the sergeant moved the patrol car (which had been stopped alongside the Chevrolet, which was the property of Mr. Moe) to the side of the road to let other traffic through, Mr. Moe, after scuffling with Mr. Peterson, got into his car and Mr. Dokken drove it away. The officers in their cars followed the Moe vehicle into Tioga.

On reaching the Moe residence, Mr. Dokken and Mr. Moe ran inside. The officers attempted to follow Mr. Moe and secure his custody but were unable to do so, Mr. Moe informing them that if they wanted to arrest him they would have to get a warrant.

At about 7:45 p.m., as the officers were leaving to secure a warrant, Mr. Moe ran out, kicked the side of the highway patrol car, and ran back to the house.

Later, Mr. Moe, still in an intoxicated condition, came to the police station and went to the second floor, where a court trial was in progress. On leaving the second floor following that trial, at about 9:00 p.m., Mr. Moe was again informed that he was under arrest, and, although he resisted being taken into custody, the officers were eventually able to place him in custody, where he remained for approximately twenty minutes until he was able to post bond.

The charge for which he was arrested and for which he posted bond was that of public intoxication. No warrant for arrest on this charge was ever secured, but three or four days later Sgt. Schimke obtained a warrant for his arrest on the charge of resisting an executive officer in the performance of his duties. It is from the conviction of this offense that Mr. Moe now appeals, the charge of being intoxicated in a public place being still pending.

The facts being as so stated, when viewed in the light most favorable to the verdict, it appears that Mr. Moe interfered with Sgt. Schimke in the performance of his duty, in that he refused to display his driver's license to Sgt. Schimke when Sgt. Schimke had a legitimate reason for asking that it be displayed so that he might determine whether Mr. Dokken was legally driving the vehicle at the time; and that he also interfered with Sgt. Schimke in the performance of his duty when he resisted Sgt. Schimke's efforts to take him into custody after the officer had informed him that he was under arrest for the offense of being intoxicated on a public highway. It is our view that being intoxicating upon a public highway is a violation of § 5--01--09, N.D.C.C., which reads as follows:

5--01--09. Being intoxicated in public place--Punishment.--Every person intoxicated in any public place is punishable by a fine of not less than five dollars nor more than fifty dollars, or by imprisonment in the county jail for not more than thirty days, or by both such fine and imprisonment.

North Dakota Century Code.

Some issue is made of the fact that a uniform summons and complaint was issued, apparently following the placing of Mr. Moe in custody in the police station, charging Mr. Moe with public intoxication, the point being made that the uniform traffic summons and complaint is not authorized in a case such as this.

In light of the fact, however, that the offense for which the arrest...