State v. Moeton

• Decision Date: 03 May 1929
• Docket Number: No. 32.,32.
• Citation: 58 N.D. 191,225 N.W. 318
• Parties: STATE v. MOETON.
• Court: North Dakota Supreme Court

58 N.D. 191

225 N.W. 318

STATE

v.MOETON.

No. 32.

Supreme Court of North Dakota.

May 3, 1929.

Syllabus by the Court.

Under sections 10822 and 10863, C. L. 1913, the jury in a criminal action are the sole and exclusive judges of the credibility of the witnesses, the weight of the evidence, and of all questions of fact; and an instruction which expresses the opinion of the court as to these matters is prejudicially erroneous.

Appeal from District Court, Grand Forks County; M. J. Englert, Judge.

Philip Moeton was convicted of grand larceny, and he appeals. Reversed, and a new trial ordered.G. W. Twiford, of Minot, for appellant.

Philip R. Bangs, State's Atty., of Grand Forks, for the State.

NUESSLE, J.

This appeal is from a judgment of conviction on a charge of grand larceny. The defendant claims a reversal on account of alleged errors in the trial court's charge to the jury. No other grounds for the appeal are assigned.

The matters essential to a determination of the issues raised may be stated as follows: The complaining witness is a jeweler and pawnbroker in the city of Grand Forks. On February 27, 1928, some one broke into his shop and stole six diamond rings. He immediately notified the police and they at once took steps to apprehend the thief. They notified the authorities of the adjoining cities and shortly thereafter the defendant was arrested in Duluth, Minn., charged with the offense. On the trial, among other things, it appeared that a day or two after the theft the defendant left a diamond ring with one Olson, a secondhand dealer, in Bemidji, Minn. Olson was a witness at the trial and produced this ring. He identified it as the one which the defendant had left with him. The defendant, called as a witness on his own behalf, admitted that he had left a ring with Olson, but said that he could not tell whether it was the one produced in court by Olson. The state also produced five other diamond rings and offered evidence tending to show that they, too, had been in the defendant's possession. The complaining witness swore that these six rings were the rings which had been stolen from him, and for the theft of which the defendant was being prosecuted. There were no particular identification marks on the rings, but the complaining witness testified that he knew them, had prepared the stones for setting, and had them set, and was positive in his identification. The defendant just as positively swore that he had not stolen the rings. He also denied that any ring, excepting that left by him with Olson, had ever been in his possession. He said this ring had been given to him by a friend, who asked him to raise some money on it.

In his instructions to the jury the trial court, among other things, charged: “There is evidence here showing that the defendant had possession of at least one ring making up this property set forth in this information. I think he admitted having possession of one, the one he turned over to the secondhand dealer, and then you heard the evidence on the question of the other, as to that, it is for you. But I will say to you, that it is a rule of the law of evidence that the possession of property recently stolen and in possession of the defendant shortly after it was stolen, unless it is satisfactorily explained, is a circumstance tending to show the guilt of the defendant, and the jury has a right to consider that evidence in connection with all of the other evidence offered and received here in court to determine the guilt or innocence of the defendant.”

The defendant challenges the propriety of this instruction. He insists that by his plea of not guilty he put in issue every matter material to the charge against him, and thus put upon the state the burden of establishing those matters by competent evidence to the satisfaction of the jury beyond a reasonable doubt; that the question as to whether or not the ring which Olson had was left with him by the defendant was a question for the jury to pass upon,...