State v. Pancoast

• Citation: 5 N.D. 516,67 N.W. 1052
• Parties: STATE v. PANCOAST.
• Decision Date: 05 June 1896
• Court: United States State Supreme Court of North Dakota

5 N.D. 516

67 N.W. 1052

STATE

v.PANCOAST.¹

Supreme Court of North Dakota.

June 5, 1896.

Syllabus by the Court.

1. Under section 7312, Comp. Laws, providing for a change of place of trial in certain criminal cases, a trial does not begin until the jury is impaneled; and a change of venue granted before that time is granted “before the trial is begun.”

2. Where an accused charged with the crime of murder has established his right to a change of place of trial to the satisfaction of the court, he may, in open court, consent that the case be sent for trial to the district court of some county that is not “near or adjoining” the county of original venue; and, after trial in the court to which the case is so sent by his request, he cannot be heard to object to the jurisdiction of such court.

3. A motion to set aside an information cannot be made after a plea of not guilty and one trial upon that plea. Neither can the point be raised by motion in arrest. Under our statutes, a motion in arrest only reaches defects that are available on demurrer.

4. While a jury was being impaneled, the state had exercised five of the six peremptory challenges allowed by law. The state challenged a proposed juror for cause. The examination of the juror disclosed that he was generally disqualified. The court, however, denied the challenge, and thereupon the state challenged the juror peremptorily. Immediately thereafter the court sustained the challenge for cause, and the juror stepped aside. Subsequently the court permitted the state to exercise another peremptory challenge. Held no error.

5. It is the duty of the state's attorney to indorse upon an information, at the time of filing the same, the names of all witnesses for the state known to him at that time; and ordinarily no witnesses should be permitted to testify for the state whose names are not so indorsed, unless it is clearly made to appear that such witnesses were not known to the state's attorney at the time of filing the information; but upon a second trial upon the same information this rule will not apply to witnesses for the state who testified upon the first trial, without objection on the part of the accused.

6. It is not error to permit preliminary questions to be answered when such answers lead up to or connect what follows either in the testimony of the witness under examination or any other witness who testifies in the case, even though the relevancy of such questions may not be apparent when asked.

7. An accomplice, as a witness, cannot by any means corroborate himself, within the meaning of the statute which requires the testimony of an accomplice to be corroborated in order to warrant conviction; but the state has the right to introduce, through the accomplice, all matters of probative force in the case to which he can testify, whether written or otherwise, in order to make his testimony as strong and inherently probable as the facts will warrant.

8. The flight and secretion of the accused may always be shown; and, to this end, it is entirely proper to prove by the officers of the law what steps were taken by them to locate and arrest the accused.

9. While it is true in this jurisdiction that the cross-examination of a witness (except as to matters affecting credibility) must be confined to the subjects to which the direct examination was addressed, yet this does not limit cross-examination to the particular facts to which the witness testified on direct examination. A subject, having been once opened, may be exhausted.

10. For the purpose of affecting the credibility of a witness, it is proper to ask him on cross-examination questions the answers to which may tend to degrade, disgrace, or criminate him; but this is subject to his constitutional privilege to refuse to answer any question the answer to which will tend to criminate him.

11. A defendant in a criminal case who takes the witness stand in his own behalf is subject to the same rules of cross-examination that govern other witnesses; and he is required to answer any relevant and proper question on cross-examination that will tend to convict him of the crime for which he is being tried, even though such answer may also tend to convict him of some collateral crime.

12. It is proper, in a criminal case, to prove the commission by the accused of another and collateral crime, where such crime furnishes a motive for the commission of the crime for which the accused is being tried; and where the accused, as a witness for himself, has denied the existence of the motive which the evidence of the state tended to show prompted the commission of the crime for which he is being tried, it is proper to show by him, on cross-examination, the commission of the collateral crime that furnishes such motive.

13. For the purpose of showing motive, the remoteness in point of time of the commission of the collateral crime cannot be considered; the sole question being whether it furnished an active, existing motive for the commission of the crime for which the party is on trial.

14. A defendant in a criminal case, who becomes a witness in his own behalf, while he thereby waives his constitutional privilege of not answering proper questions that may tend to convict him of the crime for which he is on trial, does not thereby waive his privilege to decline to answer questions the answers to which may tend to convict him of collateral crimes, when such questions are asked solely to affect his credibility.

15. A witness who desires to claim his constitutional privilege of declining to answer a question, on the ground that the answer will tend to criminate him, must make his claim in person, and under the sanctity of his oath, and with sufficient definiteness to render his claim clear to the court; otherwise, he cannot complain if his privilege is denied.

16. Even when the witness is also the party defendant, he cannot claim his privilege through his attorney; but it is highly proper in such a case that the attorney suggest to the court that the witness be apprised of his constitutional rights.

17. When it is sought to impair the credibility of a witness on cross-examination by showing bad moral character, the interrogatories should be confined to specific facts, and should be so framed that the witness can squarely admit or deny. Insinuating questions, from which a possible inference of guilt as to collateral crimes might arise, are not proper.

18. Nor does it impair the credibility of a witness to show the commission of a collateral crime more than 20 years before the examination. There has been ample time to repent and atone. The offense may have been forgiven and forgotten, and public interest demand that it be left buried in its seclusion.

19. Where evidence is properly admitted in the case for one purpose, it will not be presumed, in the absence of all showing, that it was considered for a purpose for which it was not proper; particularly when the court, in its charge, directs the jury to consider it only for the proper purpose.

20. The remarks of counsel in addressing the jury are largely within the discretion of the trial court, and no error will be declared thereon except in case of a clear abuse of discretion. Counsel should not be fettered in arguing his case to the jury. Objectionable remarks in this case, with the rulings and instructions of the court thereon, considered, and held not error.

21. Instructions of the court in this case examined, and held not vulnerable to the general objections that they “invaded the province of the jury,” or were “argumentative,” or “assumed that certain facts were proven” or were “prejudicial to the accused.”

22. Plaintiff in error requested that a large number of instructions be given to the jury, some of them correctly stating the law applicable to the case, and others not. They were all refused, but the court, in its charge, had fully, fairly, and correctly covered every point upon which instructions were requested. Held, no error in refusing the instructions requested.

23. It is the duty of the court to properly control and restrain counsel in the matter of cross-examining witnesses. In doing so in this case, there were passages between court and counsel indicative of some feeling and ill temper. If there was anything connected with this matter prejudicial to the accused, it was fully cured by an instruction which called the attention of the jury to the specific matters, and directed them not to permit such matters to prejudice them against the accused in any manner.

24. Where, after the jury had been sworn and placed in charge of bailiffs, and before the case was fully submitted to them, the jurors separate without the consent of the court, under circumstances which give an opportunity for the exercise of improper influences over the jurors, prejudice to the accused will be presumed; and, when such separations are brought to the attention of the court by affidavit on motion for new trial, the burden is on the state to overcome such presumption of prejudice. But when the counter affidavits of the state fully meet every point raised in the affidavits for the motion, and show clearly that no improper influences were used or attempted, such separations furnish no ground for new trial.

25. While the jury was so in charge of the bailiffs, and before the case was finally submitted to them, by order of the court, and with the consent of counsel on both sides, the jurors were permitted to attend church on a certain Sabbath; and a portion of them, in charge of a bailiff, did attend church. A new trial was asked upon the ground of improper influence exerted over them by reason of the nature of the sermon to which they listened; but held, that no prejudice could be presumed; and held, further, that as it is conceded that the discourse was not delivered with any intention or thought of influencing the jury, and was a proper and ordinary emanation from a Christian pulpit,...