State v. Mozinski

• Decision Date: 23 November 1922
• Citation: 49 N.D. 228,191 N.W. 345
• Parties: STATE v. MOZINSKI.
• Court: North Dakota Supreme Court

49 N.D. 228

191 N.W. 345

STATE

v.MOZINSKI.

Supreme Court of North Dakota.

Nov. 2, 1922.

On petition for Rehearing, Nov. 23, 1922.

Syllabus by the Court.

In a prosecution for the crime of assault with intent to kill, it is held:

That prejudicial error did not occur in testimony concerning conclusions of law.

Testimony concerning the disposition of manufactured whisky, unfaithfulness, and ill will of defendant towards the wife's parents was properly admitted as part of res gestæ and to show intent and motive.

Evidence concerning attempts of defendant to kill his wife, and relations of the parties, was properly admissible to show relationship, motive, and intent.

Scope of cross-examination is largely committed to the sound discretion of the trial court, and its exercise will not be disturbed unless manifest prejudice results.

Statements made by the state's attorney in his argument do not constitute prejudicial error.

The verdict rests upon some evidence of substantial nature proper to submit to a jury.

Appeal from District Court, Walsh County; Buttz, Judge.

Lawrence Mozinski was convicted of assault with intent to kill, and from the judgment, and an order denying new trial, he appeals. Affirmed.H. C. De Puy, of Grafton, for appellant.

John B. Nevin, State's Atty., and Ben Greenberg, both of Grafton, for the State.

Statement.

BRONSON, J.

Defendant was convicted of the crime of assault with intent to kill. He has appealed from the judgment and order denying new trial. The facts are:

The chief witness against the defendant was his wife. She and the defendant have been married some five years. They have three children, ranging in ages from 9 months to 3 years. While they were going homeward in an auto from a visit to some neighbors, the defendant and his wife got into a dispute. The wife gave testimony to the following effect: As the dispute grew more intense, the defendant abused her and hit her and the baby. He stopped the car near a coulee. He threatened to kill her, and to drown her, so that she would tell no stories. He jumped out of the car, grabbed her, and proceeded to drag her towards the waters of the coulee. She resisted his efforts, and fought with him. He overcame these efforts, got her down to the bottom of a little hill, and dragged her body on the ground and in the mud towards the water. There she became unconscious. When she revived he was pulling her up the hill. There he left her along the roadside. She found herself in a ditch some distance from the place. He was up ahead, and she could see the lights turn around in the road. He started homeward. She complained that she was hurt. Finally he took her to Minto. There she received temporary medical aid, and went to the home of a neighbor for the night. Next day she was taken to a hospital at Grafton, where she remained for some three weeks. It was found that she had sustained a simple fracture of the humerus in the left arm. The defendant denies any abuse, threats, or assault. He asserts that on this homeward ride his wife started the trouble. She hit him several times. He stopped the car to quiet her. When he started it again, she jumped out. He went to get her, and found her lying on the bank of the coulee.

In the testimony it developed that at both places where the defendant and his wife visited they had imbibed intoxicating liquor. The dispute apparently arose from some transactions between defendant and his sister. Defendant wanted to return in the morning with the car to do some business for his sister. It developed in the testimony that his sister had manufactured some whisky, and wanted defendant and his car for purposes of its disposition. Testimony was adduced concerning various disputes and assaults between them during the course of their married life. Evidence, also, that each had accused the other of unfaithfulness. Once the wife left the defendant, but returned. The wife testified to an incident about a month and a half before the alleged crime when he threatened to tie a stone to her neck and drown her. Also to another incident about two years previous when he grabbed her, pushed her to a stove, and threatened to kill and burn her. Defendant likewise testifies to incidents at different times when the wife got angry and assaulted him with various instrumentalities.

Upon oral instructions, the jury were requested to return a verdict of simple assault, of assault with intent to kill, or a verdict of not guilty.

The defendant has urged some 34 errors. These have been grouped. In brief, the defendant contends:

(1) Error in permitting the wife to testify to the conclusion that defendant was going to drown her.

(2) Error in permitting testimony connecting the defendant with the illicit sale of whisky, and in permitting testimony to show unfaithfulness by defendant to his wife, and attempting to prove ill will by defendant against the wife's parents.

(3) Error in permitting evidence of other alleged attempts to kill the wife.

(4) Misconduct of the state's attorney in propounding, on cross-examination, insinuating questions, and in making statements unsupported by the evidence.

(5) Abuse of discretion in the trial court in not granting a new trial through insufficiency of the evidence to establish any intent to kill.

In a memorandum decision denying a new trial, the trial court has found that there was ample evidence in the record to justify the finding of the jury concerning intent to kill his wife; that the state's attorney endeavored to give the defendant a fair trial, and that there was not any misconduct on his part such as would prejudice defendant's rights.

Decision.

[1] 1. It is true the wife testified to some conclusions of law wherein she volunteered the phrase, “He was going to kill or drown me,” as descriptive of the place or the time and otherwise; but she testified directly in this regard concerning her husband's declarations at the time of the alleged crime. Under the circumstances, we are of the opinion that prejudicial error did not occur in this regard.

[2] 2. We are also of the opinion that no prejudicial error occurred in the admission of testimony concerning the disposition of the manufactured whisky, unfaithfulness, or ill will of defendant towards the parents. Some of this testimony formed a part of the res gestæ. Otherwise we are of the opinion that it was properly admitted, to show intent and motive. State v. Miller, 20 N. D. 509, 511, 128 N. W. 1034;State v. McGahey, 3 N. D. 293, 55 N. W. 753.

[3] 3. Evidence concerning other alleged attempts of the defendant to kill his wife and the relations of the parties was reasonably well within the rule, in our opinion, permitting the admissibility of evidence to show relationship, motive, and intent. State v. Kent, 5 N. D. 516, 558, 67 N. W. 1052, 35 L. R. A. 518; State v. McGahey, supra; State v. Merry, 20 N. D. 337, 127 N. W. 83.

[4] 4. The scope of cross-examination is largely committed to the sound discretion of the...