State v. Mueller

• Court: North Dakota Supreme Court
• Writing for the Court: BRUCE
• Citation: State v. Mueller, 40 ND 35, 168 NW 66 (N.D. 1918)
• Decision Date: 10 June 1918
• Parties: STATE v. MUELLER.

40 N.D. 35

168 N.W. 66

STATE

v.MUELLER.

Supreme Court of North Dakota.

May 9, 1918.

Rehearing Denied June 10, 1918.

Syllabus by the Court.

The allowance of leading questions is largely in the control of the trial court, and no prejudice can be assumed where the testimony elicited is afterwards testified to by a witness of the party complaining.

Where evidence of guilt of the act of a homicide is overwhelming and practically admitted, and the real defense is that of insanity, mere technical or immaterial errors in relation to the homicide will be disregarded.

Errors in the exclusion of testimony will not be considered where the matters in dispute are afterwards testified to without objection.

It is not error to exclude testimony which has been repeatedly given, even though the question is not exactly in the same form as that which has been before answered.

Where a person shoots several others in succession and within the space of less than an hour, and is tried for the murder of the first one shot, all of the shootings are part of the res gestæ.

No error is committed in asking the question, “Didn't you testify in answer to the question I am reading now, and make the following statement when you were at the preliminary examination?” etc., nor is there any merit in the contention that the evidence on the preliminary examination had been given through an interpreter and was not understood by the stenographer who transcribed it, when the question is merely asked for the purpose of laying the foundation for impeachment.

No reversible error was committed where a medical expert was asked whether a family history of crime would not generally result in a descendant being in the penitentiary, and where the expert answered that “criminal tendencies are not inherited,” and even though there was no proof of any such family history.

The ill feeling and prejudice of a witness can always be shown on cross-examination.

The mere refusal to allow a hypothetical question will not constitute reversible error, where later on in the trial the utmost freedom of examination is allowed.

It is not necessary that the name of a witness who is called in rebuttal should have been written upon the information.

Where a stenographer testified as to what he heard upon a preliminary trial, and not as to the contents of his notes, and there is no evidence that he did not understand the German language, no error is committed in allowing him to testify, even though the evidence shows that the testimony on the preliminary examination was given through an interpreter, and even though the stenographer had not testified that he had correctly transcribed his notes.

It is not error to instruct a jury that:

“In order to constitute murder in the first degree as charged in the information the killing must have been willful with malice aforethought, and with premeditation and deliberation. There must have been a specific, deliberate, premeditated intention to take life, unaccompanied by any circumstance of mitigation. The generally accepted meaning of the word ‘premeditation’ is a prior determination to do the act in question and then determination to do it, but it is not essential that this intention should exist for any considerable period of time before it was carried out. If the determination is formed deliberately and upon due reflection, it makes no difference how soon the fatal resolve was carried into execution. An act is done willfully when done intentionally and on purpose.”

“Murder in the second degree differs from murder in the first degree only in the fact that as to the second degree there is no premeditation or deliberation. Thus, where a person forms a design to kill in the midst of a conflict and immediately executes such design, the killing is not premeditated, and is therefore no higher offense than murder in the second degree.”

Appeal from District Court, Stutsman County; J. A. Coffey, Judge.

John Mueller was convicted of murder in the second degree, and he appeals. Affirmed.Knauf & Knauf, of Jamestown, and John Carmody, of Fargo, for appellant. John W. Carr, State's Atty., and Louis Tellner, Asst. State's Atty., both of Jamestown, and William Langer, Atty. Gen., for the State.

BRUCE, C. J.

The defendant in this case was convicted of the crime of murder in the second degree. Practically the only defense is that of insanity. The abstract contains nearly 600 printed pages. Appellant's brief contains 73 assignments of error, and the rules of this court are entirely ignored which require “the assignments upon which he relies to be set forth,” and that “the brief shall contain such portions of the record as will enable the court to clearly understand the nature of the case, and where rulings on the testimony constitute the errors complained of, sufficient explanatory facts or evidence shall be recited.” See rule 34 (145 N. W. xiii). These omissions are, no doubt, due to the fact that the principal counsel has been called to the service of his country, and are ignored by this court for that reason, and for the reason that it does not desire that any one shall be imprisoned for 30 years without a full opportunity for a hearing. Defendant's omissions, however, have rendered an examination of the case extremely laborious and extremely difficult.

The defendant, John Mueller, is charged in the information with the murder of Valentine, otherwise called Fulda, Hins, on December 25, 1915. Valentine was 17 years of age and the defendant was 20 years old. The defendant lived with his parents six miles north of Medina, in Stutsman county, and Valentine Hins lived with his parents four miles north of Medina. The Hins family had lived there about 5 years at the time the crime was committed. The Hins and Mueller families appear to have been friendly, and visited back and forth until January, 1915, when they became unfriendly because of undue intimacy between Gustave Hins, a brother of the murdered boy, Valentine, and Anna Mueller, a sister of the defendant, John Mueller. Some time about January 9, 1915, Gustave Hins, having been charged by the Mueller family with this offense against Anna Mueller, ran away and left the country. From that time until the time of the murder, on December 25, 1915, the two families did not visit back and forth and were not very friendly. The defendant, John Mueller, had not been to the Hins home for a year prior to the evening of December 24, 1915, the night before the murder was committed.

The defendant went to the Hins home on the afternoon of December 25, 1915, and, together with Valentine Hins and Frederick Hins, the father of Valentine, went to the barn on the Hins farm to do their chores. Valentine Hins and the defendant, John Mueller, went into the barn. Frederick Hins, the father of Valentine Hins, was working outside trying to drive some colts into the barn. When he got close to the barn he noticed that some one had shut the door which he had opened a short time before. When he opened the door the defendant, John Mueller, began shooting with a revolver. Frederick Hins describes what happened, as follows:

“Somebody had closed the door, but I don't know who it was. It was not me. I then got behind the colt to drive it into the barn. Mueller was standing behind the horse which Fulda had watered last. I did not see Fulda. * * * I wanted to drive the colt back to its place. I got about eight feet from where Mueller was. It was John Mueller, the defendant. I did not see any gun from where he shot me. He shot me; then I saw it. When he shot me he was standing there until I came up and until he shot me. Was so scared I don't know where he shot me first or where the shot hit me first. After he shot me, he shot me immediately again. The second time he hit me up here. I noticed he struck me up here. I did not say anything. I turned around and ran out, and he shot me again. He shot me through the foot; I mean he hit me though the leg instead of the foot. In the barn he shot me three times. After I was hit the third time, I fell down. I did not quite fall down altogether, but almost fell down or collapsed. I got out of the barn. My wife came running. She was feeding the pigs in the old barn. I did not see anything else besides my wife when I got out. I did not see Mueller after I got out. I did not see Mueller until my wife was shot dead. I mean she fell down before me and was completely dead. She did not die. She got up again after a while. When I saw my wife shot down like she was dead, I saw Mueller. He was standing beside me. He was standing quiet and looking. He did not point the gun at me right away. My wife got back upon her feet. She was holding my arm when she was shot. He came up behind and shot her and she fell down before me. She was shot in the neck. After she got up she said, ‘John, are you shooting on purpose, or what is the matter?’ John said, ‘Yes.’ He said, ‘We had this made up three months ago already that this was to happen to you.’ He did not say anything else. * * * My wife said, ‘You were with us last evening, and we thought you were good.’ He said, ‘Well, we are Muellers.’ My little daughter same out and got hold of me and said, ‘Oh, God! Father is shot.’ Mueller put the revolver up to her breast and said, ‘Get away or I will shoot you.’ Then he put the revolver up to the breast of my wife and said, ‘Go away or he would shoot her.’ And then he pointed the revolver at me and said I should go away or he would shoot. I said, ‘John, have pity on me and do not kill me altogether.’ Then my wife said I should come along. Then I went in. Up to this time I had not seen Fulda.”

The witness then details going to the house, and their son Valentine, or Fulda, as they sometimes called him, coming to the house in a wounded condition, and details an attempt made by the defendant, John Mueller, to get into the house, and how they refused to let him come in until he had put down his revolver. Prior to the...