State v. Ramstad, Cr. N

• Decision Date: 30 January 1958
• Docket Number: Cr. N
• Citation: 87 N.W.2d 736
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Allen RAMSTAD, Defendant and Appellant. o. 283.
• Court: North Dakota Supreme Court

Page 736

87 N.W.2d 736

STATE of North Dakota, Plaintiff and Respondent, v. Allen RAMSTAD, Defendant and Appellant.

Cr. No. 283.

Supreme Court of North Dakota.

Jan. 30, 1958.

Rehearing Denied Feb. 11, 1958.

Syllabus by the Court.

1. In passing on a motion for a new trial based on the insufficiency of the evidence in a criminal case the trial court is clothed with a wide discretion and his determination will not be disturbed unless there appears to have been an abuse of that discretion.

2. It is not an abuse of discretion on the part of the trial court to deny a motion for new trial on the ground of insufficiency of the evidence where there is substantial evidence to support the verdict.

3. Section 31-0801, NDRC 1943 is a legislative enactment of the Uniform Business Records As Evidence Act which is applicable to criminal as well as civil actions.

4. Section 31-0801, NDRC 1943 has no effect upon relevancy but permits a wide discretion on the part of the trial court in passing upon the sufficiency of the foundation of proffered evidence that otherwise comes within the purview of the statute and the ruling of the trial court in this respect will not be disturbed by the appellate court except for a manifest abuse of that discretion.

5. In a prosecution under Section 35-0126, NDRC 1943 it is incumbent upon the State to prove that at the time the violation of the statute is charged to have been committed there was a valid and subsisting lien known to the defendant which in turn entails proof of an unpaid debt secured by the lien.

6. In a prosecution under Section 35-0126, NDRC 1943 it is not error for the trial court to refuse to permit the defendant, over proper objection, to testify that he did not intend to defraud the owner of the lien that is the basis of the prosecution or that he has since the prosecution was commenced paid the debt secured by the lien.

7. In a prosecution under Section 35-0126, NDRC 1943 an instruction that 'the term 'wilfully' when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act or omission referred to' when considered in connection with a subsequent instruction advising the jury that there could be no conviction 'unless there was a criminal intent at the time on the part of the defendant to sell and dispose of the property covered by the lien' is not erroneous.

8. In a prosecution under Section 35-0126, NDRC 1943 the court did not err in failing to submit to the jury a form of verdict for the conviction of the defendant for the commission of a misdemeanor where the evidence showed that he was either guilty of a felony or not guilty.

Leslie R. Burgum, Atty. Gen., and Lyle E. Huseby, State's Atty., Fargo, for plaintiff and respondent.

Lanier, Lanier & Knox, Fargo, for defendant and appellant.

MORRIS, Judge.

In a Criminal Information filed by the State's Attorney of Cass County the defendant was charged with committing the crime of removing or concealing or selling or disposing of property subject to a lien. The property is further described in the Information as being 60 head of yearling white-face bred ewes upon which there was known to the defendant to be a subsisting lien by reason of a chattel mortgage dated January 9, 1956 given by the defendant and his wife to Gyda Vculek. It is also charged that this property exceeded in value the sum of $100. The defendant did not challenge the form of the Information and after a trial by a jury a verdict of guilty was rendered pursuant to which judgment and sentence were pronounced by the court on April 5, 1957.

After the verdict was rendered and before sentence was pronounced the defendant moved for a new trial. The hearing on this motion was set for April 15, 1957. The matter was continued by stipulation in order to permit time for obtaining a transcript. The statement of the case was later settled by stipulation and an order of the court made pursuant thereto. The motion for new trial was heard on June 24, 1957 and on that date the court entered an order denying the motion.

The motion for a new trial was accompanied by specifications of error challenging the sufficiency of the evidence to support the verdict and the judgment of conviction. The defendant also specified errors in law with respect to certain instructions to the jury and rulings of the court on the admission and exclusion of evidence. We will first consider the sufficiency of the evidence to support the verdict.

We approach the question of the sufficiency of the evidence to support the verdict bearing in mind these rules. In passing on a motion for a new trial based on the insufficiency of the evidence the trial court is clothed with a wide discretion and his determination will not be disturbed unless there appears to have been an abuse of discretion. State v. Braathen, 77 N.D. 309, 43 N.W.2d 202; State v. Graber, 77 N.D. 645, 44 N.W.2d 798; State v. Whiteman, N.D., 79 N.W.2d 528; State v. Pusch, N.D., 79 N.W.2d 295. It is not an abuse of discretion on the part of the trial court to deny the motion for new trial on the ground of insufficiency of the evidence where there is substantial evidence to support the verdict. State v. Foster, 14 N.D. 561, 105 N.W. 938; Nilson v. Horton, 19 N.D. 187, 123 N.W. 397; State v. Mozinski, 49 N.D. 228, 191 N.W. 345; State v. Shepard, 68 N.D. 143, 277 N.W. 315; State v. Graber, supra. See State v. Hazer, 57 N.D. 900, 225 N.W. 319.

Mrs. Gyda Vculek operates a farm near Crete in northwestern Sargent County. At the time of the incidents involved in this case she was assisted by her 22 year old son Bernard Lee Vculek and John Hopkins, the hired man. Among her farming activities was sheep raising. The breed of these sheep is described as a cross between the Columbia and the Rambouillet. Witnesses describe them as white-faced or greyish-white.

The defendant is a farmer who operates a farm in north central Cass County about 100 miles from the farm of Mrs. Vculek. On January 9 and 10, 1956 he purchased from her 120 yearling ewes for $2,595. He gave her a check dated January 10, 1956 for $215 with the understanding that she would hold it for a few days. She deposited the check three times and each time it was returned by the drawee bank for insufficient funds. In addition to the check the defendant gave Mrs. Vculek a mortgage for the balance of $2,380 covering 'One hundred twenty (120) head of yearling white face bred ewes and the increase of said ewes and all of the wool when said sheep are sheared.' This mortgage was filed for record in the office of the Register of Deeds of Cass County on February 27, 1956. The balance of the purchase price secured by the mortgage was to be paid in installments. Mrs. Vculek was to get $50 on February 1, $50 on March 1 and $50 on March 20, 1956. On March 16 the defendant sent Mrs. Vculek a money order for $80. At that time he was in default for the amount of the check and two payments, making a total of $315.

On March 15, 1956 Bernard Lee Vculek and John Hopkins, Mrs. Vculek's hired man, went to the defendant's farm and looked at the sheep in his feed lot. Some were white-faced and some black-faced. There were approximately 104 altogether, about 60 being white-faced. These were the only sheep on the farm that the visitors could see. When Bernard asked the defendant where the sheep were he said he didn't know, he thought they were there in the morning. He also said that his hired man who had left a few days before could have stolen them. They counted the sheep again and arrived at a top count of 60 white-faced yearlings. The rest were black-faced. On March 23 Mrs. Vculek and her son returned to the farm of the defendant with a truck and driver. The defendant refused to give up any of the sheep. On March 27, 1956 Mrs. Vculek subscribed and swore to a Criminal Complaint charging the defendant with the crime for which he was later tried. On April 16 Mrs. Vculek repossessed 57 of the sheep covered by the mortgage.

On February 9, 1956 the witness Leo Briedenback purchased from the defendant through the Harrington Brothers Livestock sales ring at Mayville, N. D., 10 yearling bred ewes for $20.25 each. He described them as white-faced or dirty-white. They were a cross between Rambouillet and Columbia. On February 16 he purchased 5 more of defendant's ewes of the same kind for $20 each.

It is clearly established that the defendant bought 120 yearling white-faced or grey-faced bred ewes from Mrs. Vculek on which he gave a purchase money mortgage. He defaulted on the mortgage almost immediately. When Mrs. Vculek's son and hired man went to the defendant's farm about two months later half of the ewes could not be found. He admitted they were missing but his explanation of their disappearance was vague. Neither at that time nor at the trial did he offer a plausible explanation as to what happened to them. He testified at the trial that when he realized the sheep were missing he did no, report the fact to the authorities but said he looked for them himself for a week and after that he kept looking around and thinking they might show up. When cross-examined about the sheep he sold through the Harrington Brothers sales ring his statements were evasive. In order to be properly evaluated they must be quoted.

'Isn't it a fact that you took 10 grayish ewes, yearling bred ewes, to the Harrington Brothers at Mayville to be sold? A. I wouldn't say that.

'Q. Well, what would you say, Mr. Ramstad? A. Well, it was a mixture.

'Q. Were any of those Mrs. Vculek's ewes? A. I wouldn't know. I took sheep out of the herd. I just chased the sheep in and put them in my pickup and took them into Mayville.

'Q. Is it possible that some of them were Mrs. Vculek's ewes? A. It could be and it could not be.

'Q. I see. Is it possible that some of the ewes that you sold on the 16th of February were Mrs. Vculek's ewes? A. I would answer that the same.

'Q. It could be...