State v. Reilly

• Decision Date: 20 May 1913
• Citation: 25 N.D. 339,141 N.W. 720
• Parties: STATE v. REILLY.
• Court: North Dakota Supreme Court

25 N.D. 339

141 N.W. 720

STATE

v.REILLY.

Supreme Court of North Dakota.

March 21, 1913.

On Rehearing, May 20, 1913.

Syllabus by the Court.

Information examined and held to sufficiently state the offense of murder in the second degree under sections 8789, 8796, and 8912, Rev. Codes 1905, accomplished by the unintentional killing of a human being while engaged in the procurement of a miscarriage which was not necessary to save the life of the deceased.

A trial judge has no right to arbitrarily discharge a regular jury panel without cause and summon another for the trial of a particular case. He may, however, for reasons which, in the exercise of his discretion, he deems sufficient, excuse jurors who have been summoned, although such action may necessitate the resort to talesmen or the summoning of an additional jury, and even though his reasons therefor are not such as would constitute a legal ground for the disqualification or exemption of such jurors.

Where a panel has been properly summoned, but only a portion thereof appears at the trial, it is not necessary for the court to delay the impaneling of such jury or to postpone the trial, nor is it necessary for him to summon other jurors or to issue attachments for the absent jurors before proceeding with the impaneling of those who have appeared.

An objection that a question is “incompetent, irrelevant, and immaterial, no foundation laid, and an improper question-improper to ask for the opinion of the doctor”-does not sufficiently raise an objection that some of the witnesses, on whose testimony the hypothetical question is based, gave their own opinions in addition to reciting the facts of their observation.

The question, “Doctor, when another physician is called in a serious case, what is the custom of the first physician, what does he usually do? Tell him everything he knows about the case?” is not vulnerable to the objection that it is incompetent, irrelevant, and immaterial, no foundation laid, and not in any way binding upon the defendant. If there is a general usage applicable to a particular profession or business, parties who engage an individual in that profession are supposed to deal with him according to the usage, and the fact that there may be a local usage which is different from the general custom is not suggested by the objection.

Where a witness is allowed to testify fully on cross-examination to the fact as to whether a particular would upon the uterus could have been inflicted by the deceased herself, it is not error to sustain an objection to a further question propounded upon such cross-examination as to whether it is not a fact within medical knowledge that intentional abortions are often performed by the use of needles, knitting needles, lead pencils, or other instruments.

Where matters are not in dispute and are repeatedly testified to and fully conceded by the witnesses for the state, it is not necessarily reversible error in a criminal case to exclude questions which are merely cumulative and in affirmance of that which the state's witnesses freely admit.

The extent of cross-examination is within the sound discretion of the court.

It is not necessary that a person should be a graduate of a medical college or duly licensed to practice in order that he may give testimony as an expert medical witness, and where the witness testified that he was a physician and surgeon, had practiced for 18 years and treated all kinds of ailments, sicknesses, and performed surgical work, as his qualification to so testify was sufficiently proved.

Various instructions examined, and, although not approved, held not to be prejudicial or to constitute reversible error.

An instruction to the effect that, “If any witness has been shown to have willfully and knowingly testified falsely in regard to some material matter, you are at liberty to disregard his testimony entirely, unless corroborated by credible testimony,” held to be a sufficiently definite statement of the law upon the subject.

The trial judge said: “The court at this time will submit to the jury a written charge, but owing to the fact that there is but one counsel for the defense, and that his time has been thoroughly taken up during the progress of the trial so that he has not had proper and sufficient time to consider the charge in order to file his written exceptions thereto, which he would be required to do before the charge was given, the court will permit the defendant to consider the charge the same as if it had been delivered orally, and save to him his right to file exceptions thereto the same as if it were an oral charge.” Held, that under sections 9987, 9988, and 10078, R. C. 1905, such exceptions were required by the order to be filed within 20 days, and that, unless such exceptions were so filed, the right thereto was waived. (Fisk, J., dissenting.)

Evidence examined, and held to sustain the verdict.

It is not error to refuse to grant a new trial on the ground of newly discovered evidence, where the evidence discovered is merely cumulative and does not tend to make “a doubtful case clear.”

The refusal of a new trial cannot be assigned as error where, as a matter of fact, no motion for the same was made or presented, but merely a notice served of an intention so to move. The same is true of assignments of error which relate merely to the sufficiency of the evidence.

On Rehearing.

An expert may give an opinion based on the testimony of other witnesses that he has heard, in case there is no material conflict in the facts testified to by such other testimony.

Appeal from District Court, Cavalier County; A. G. Burr, Special Judge.

James J. Reilly was convicted of murder in the second degree, and he appeals. Affirmed.

Fisk, J., dissenting.

E. R. Sinkler, of Minot, and J. A. Heder, of Medicine Lake, Mont., for appellant. G. Grimson, State's Atty., of Langdon, and Andrew Miller, Atty. Gen., for the State.

BRUCE, J.

The defendant was convicted of the crime of murder in the second degree. The crime as charged was the unintentional killing of a human being while engaged in the commission of a felony, that is, the procurement of an abortion. The defendant has appealed from the judgment.

[1] The first assignment of error relates to the demurrer interposed to the information, which was overruled by the court. The information, omitting the formal parts, reads as follows: “That heretofore, to wit, on or about the 9th day of February, A. D. 1911, at the county of Cavalier, state of North Dakota, one James J. Reilly, late of the county of Cavalier and state of North Dakota, did commit the crime of murder in the second degree, committed as follows, to wit: That at the village of Milton, county of Cavalier, state of North Dakota, on or about the 9th day of February, A. D. 1911, in and upon the body of one Lillian Drury, a human being then and there being, the said James J. Reilly did unlawfully, willfully, and feloniously, and without any design to effect the death of the said Lillian Drury, commit an assault with some instrument or other means to this informant unknown, and the said James J. Reilly did then and there unlawfully, willfully, and feloniously, and without the design to effect the death of the said Lillian Drury, use and employ, insert, and thrust the said instrument and other means aforesaid upon and into the womb of the said Lillian Drury, who at that time and place was a woman pregnant with child, with the intent then and thereby to produce and procure the miscarriage of the said Lillian Drury, the same not then and there being necessary to preserve the life of the said Lillian Drury, and the said James J. Reilly did then and there, by the means and in the manner aforesaid, inflict in and upon the body of the said Lillian Drury a mortal wound, of which said mortal wound the said Lillian Drury did, on the 20th day of February, A. D. 1911, at the village of Milton, county of Cavalier, state of North Dakota, die.”

The crime is charged in the language of the statute (see section 8912, R. C. 1905), and we believe that the information is not vulnerable to a demurrer. All that the Code requires of informations is that they shall contain “a statement of the acts constituting the offense in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended.” Section 9848, R. C. 1905. It would, we believe, be absurd to contend that a person of ordinary understanding would not understand the meaning and intent of this information.The word “same,” it appears to us, must relate to the word “miscarriage.” State v. Quinn, 2 Pennewill (Del.) 339, 45 Atl. 544. We realize, of course, that there is a statement in the case of State v. Belyea, 9 N. D. 353, 361, 83 N. W. 1, which may seem to suggest a contrary view to that taken by us. This statement, however, hardly rises even to the dignity of a dictum. It was a declaration merely, and was expressly stated to be outside of the opinion. So, too, our attention has been called to the case of Bassett v. State, 41 Ind. 303. In that case, however, the information stated that “the employment of said instrument not being necessary to preserve the life of the woman,” without alleging that the miscarriage was not necessary to save the life of the woman. The allegations in the two cases are not, to our minds, at all similar.

[2] Appellant's second point relates to the jury. The record shows that on the 9th day of June, 1911, an order was made by the Hon. W. J. Kneeshaw, directing the summoning of a petit jury of 36 men to serve for the adjourned term of the district court convening on June 19th; that such jurors were selected, and that 33 of them appeared on June 19, 1911; that of said 33 jurors one was excused for the term, and all of the balance remained until the 21st day of June, 1911, at which time one more was excused, and the balance of 31 remained and served as jurors until the 24th...