State v. Riordan

• Decision Date: 22 January 1916
• Docket Number: 1915
• Citation: 161 N.W. 606,36 N.D. 119
• Court: North Dakota Supreme Court

161 N.W. 606

36 N.D. 119

STATE OF NORTH DAKOTA v. JAMES RIORDAN

No. 1915

Supreme Court of North Dakota

January 22, 1916

Rehearing denied March 3, 1917.

From an order denying motion for a new trial.

Appeal from the District Court of Eddy County, Honorable C. W Buttz, Judge.

Defendant appeals.

Reversed.

Reversed and remanded.

N. J Bothne, for appellant.

In a criminal case defendant is always and at every stage of the case presumed to be innocent until the state proves his guilt beyond a reasonable doubt, and the burden is at all times on the state and never shifts to the defendant to establish an affirmative defense. United States v. Crow Dog, 3 Dak. 106, 14 N.W. 437; State v. Weckert, 17 S.D. 202, 95 N.W. 924, 2 Ann. Cas. 191; People v. Shanley, 49 A.D. 56, 63 N.Y.S. 449; State v. Huffman, 16 Ore. 15, 16 P. 640; State v. Chee Gong, 16 Ore. 534, 19 P. 607; State v. Grinstead, 62 Kan. 593, 64 P. 49, 14 Am. Crim. Rep. 209; State v. McClellan, 23 Mont. 532, 75 Am. St. Rep. 558, 59 P. 924, 12 Am. Crim. Rep. 13; People v. Powell, 87 Cal. 348, 11 L.R.A. 75, 25 P. 481; People v. Bushton, 80 Cal. 160, 22 P. 127, 549; People v. Neary, 104 Cal. 373, 37 P. 943; People v. Scott, 123 Cal. 434, 56 P. 102, 11 Am. Crim. Rep. 690.

"An instruction which in substance tells the jury that the burden of proof has shifted during the trial, and that it has become incumbent on defendant to prove a certain defense, is error. People v. Tapia, 131 Cal. 647, 63 P. 1001; Coffin v. United States, 156 U.S. 432, 39 L.Ed. 481, 15 S.Ct. 394; Trumble v. Territory, 3 Wyo. 280, 6 L.R.A. 384, 21 P. 1081; Gravely v. State, 38 Neb. 871, 57 N.W. 751; Peyton v. State, 54 Neb. 188, 74 N.W. 597, 11 Am. Crim. Rep. 47; Davis v. State, 54 Neb. 177, 74 N.W. 599; Burger v. State, 34 Neb. 397, 51 N.W. 1027; State v. Usher, 126 Iowa 287, 102 N.W. 101; State v. Shea, 104 Iowa 724, 74 N.W. 687; State v. Donahoe, 78 Iowa 486, 43 N.W. 297; People v. Coughlin, 65 Mich. 704, 32 N.W. 905; Wright v. Territory, 5 Okla. 78, 47 P. 1069; Jeffers v. State, 20 Ohio C. C. 294, 10 Ohio C. D. 832; Hopps v. People, 31 Ill. 385, 83 Am. Dec. 231; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162; Davis v. United States, 160 U.S. 469, 40 L.Ed. 499, 16 S.Ct. 353; People v. Downs, 123 N.Y. 558, 25 N.E. 988; People v. Riordan, 117 N.Y. 71, 22 N.E. 455; Barton v. Territory, 10 Ariz. 68, 85 P. 730; State v. Conahan, 10 Wash. 268, 38 P. 996; State v. Earnest, 56 Kan. 31, 42 P. 359; Boykin v. People, 22 Colo. 496, 45 P. 419; State v. Bartlett, 43 N.H. 224, 80 Am. Dec. 154; Ford v. State, 73 Miss. 734, 35 L.R.A. 117, 19 So. 665; State v. Child, 40 Kan. 482, 20 P. 275; Schultz v. Territory, 5 Ariz. 239, 52 P. 352, 11 Am. Crim. Rep. 44; Ballard v. State, 19 Neb. 609, 28 N.W. 271; Crook v. State, 27 Tex.App. 198, 11 S.W. 444; Howard v. State, 50 Ind. 190; 33 Cyc. 1514; Wistrand v. People, 213 Ill. 72, 72 N.E. 748.

In cases of rape, where defendant's age is fixed by statute, the burden of proof is upon the state to prove defendant over that age. Hubert v. State, 74 Neb. 220, 104 N.W. 276, 106 N.W. 774; Thompson v. State, 45 Tex. Crim. Rep. 190, 74 S.W. 914; McIntyre v. State, Tex. Crim. Rep. , 43 S.W. 104; Schramm v. People, 220 Ill. 16, 77 N.E. 117, 5 Ann. Cas. 111; Sutton v. People, 145 Ill. 279, 34 N.E. 420; State v. Hall, 164 Mo. 528, 65 S.W. 248.

"An instruction that the jury in order to find for defendant should be "satisfied" from all the evidence that the facts alleged as a defense are true, is erroneous." Rosenbaum Bros. v. Levitt, 109 Iowa 292, 80 N.W. 393; Foley v. State, 11 Wyo. 464, 72 P. 629; Kelch v. State, 55 Ohio St. 146, 39 L.R.A. 737, 60 Am. St. Rep. 680, 45 N.E. 6.

Only a preponderance is necessary, and where an instruction is given that the jury must be "satisfied," it is erroneous, since it requires much more than a mere preponderance. Com. v. Colandro, 231 Pa. 343, 80 A. 571; Western Cottage Piano & Organ Co. v. Anderson, 45 Tex. Civ. App. 513, 101 S.W. 1065; Torrey v. Burney, 113 Ala. 496, 21 So. 351; Wilcoxin v. Com. 138 Ky. 846, 129 S.W. 310; Cleveland, C. C. & St. L. R. Co. v. Best, 169 Ill. 301, 48 N.E. 687.

The use of the words "satisfy," "satisfied," or "satisfaction" by the court in instructing the jury as to the effect of defendant's proof upon any given point, is error. San Antonio & A. P. R. Co. v. Graves, Tex. Civ. App. , 131 S.W. 614; Bryan v. Chicago, R. I. & P. R. Co. 63 Iowa 464, 19 N.W. 295; Jerolman v. Chicago, G. W. R. Co. 108 Iowa 177, 78 N.W. 855; State v. Weckert, 17 S.D. 202, 95 N.W. 924, 2 Ann. Cas. 191; Rolfe v. Rich, 149 Ill. 436, 35 N.E. 353; Williams v. State, 73 Miss. 820, 19 So. 826; Jones v. State, 84 Miss. 194, 36 So. 243; State v. Charles, 161 N.C. 286, 76 S.E. 715; People v. Phipps, 39 Cal. 335; State v. Sears, 61 N. C. (Phill. L.) 147; People v. Kernaghan, 72 Cal. 609, 14 P. 566; Ball v. Marquis, Iowa , 92 N.W. 691; Bradwell v. Pittsburgh & W. E. Pass. R. Co. 139 Pa. 404, 20 A. 1046; State v. Hazlet, 16 N.D. 426, 113 N.W. 374; State v. Evans, 12 S.D. 473, 81 N.W. 893; People v. Levalie, 6 A.D. 230, 39 N.Y.S. 874; Wasson v. Palmer, 13 Neb. 376, 14 N.W. 171; Howard v. State, 50 Ind. 190; McNamara v. People, 24 Colo. 102, 48 P. 541; Burger v. State, 34 Neb. 397, 51 N.W. 1027.

"The burden is upon the prosecution to prove that the offense was committed within the county where the venue is laid, and, if there is no sufficient proof on this point, a conviction cannot be sustained." 12 Cyc. 382; State v. First Nat. Bank, 3 S.D. 52, 51 N.W. 780.

The locus delicti must be shown by the evidence to be within the jurisdiction of the trial court, or else the conviction will not stand. This fact cannot be established by inference. State v. First Nat. Bank, supra; Stazey v. State, 58 Ind. 514; State v. McGinniss, 74 Mo. 245; People v. Parks, 44 Cal. 105; Larkin v. People, 61 Barb. 226; Dougherty v. People, 118 Ill. 160, 8 N.E. 673; Sedberry v. State, 14 Tex.App. 233; Walker v. State, 153 Ala. 31, 45 So. 640; Franklin v. State, 5 Baxt. 613; Kolman v. State, 124 Ga. 63, 52 S.E. 82; State v. Quaite, 20 Mo.App. 405; State v. Hartnett, 75 Mo. 251, 4 Am. Crim. Rep. 572; Com. v. Clauss, 5 Pa. Dist. R. 658, 18 Pa. Co. Ct. 381; Miles v. State, 23 Tex.App. 410, 5 S.W. 250.

Wm. Langer, Attorney General, D. V. Brennan and H. A. Bronson, Assistant Attorneys General, and R. F. Rinker, State's Attorney, and Orville W. Duell, Assistant State's Attorney, for respondent.

We believe defendant is correct in his theory that the burden of proof in a criminal case is never upon the defendant. But we contend that defendant has misconstrued or misunderstood the charge of the court.

"The state is not required to prove in the first instance that defendant was over the age of fourteen years when the act was committed. And where defendant sets up the defense that he was under such age when the alleged offense was committed the burden is upon him to establish that fact by evidence." 10 Enc. Ev. 580; State v. McNair, 93 N.C. 628; Peckham v. People, 32 Colo. 140, 75 P. 423; People v. Ah Yek, 29 Cal. 575; State v. Knighten, 39 Ore. 63, 87 Am. St. Rep. 647, 64 P. 866; Mitchell v. People, 24 Colo. 532, 52 P. 671.

The court instructed the jury that "if defendant has proven to your 'satisfaction' that he was under twenty years of age at the time the act is alleged to have been committed, he should be acquitted." The defendant complains of the use by the court of the word "satisfaction." Like instructions in effect have been sustained. State v. Reed, 62 Iowa 40, 17 N.W. 150; State v. Hemrick, 62 Iowa 414, 17 N.W. 594; State v. Hamilton, 57 Iowa 596, 11 N.W. 5; State v. Krewsen, 57 Iowa 588, 11 N.W. 7; State v. Red, 53 Iowa 69, 4 N.W. 831.

The trial court further on in its instructions made it very clear to the jury that the state must prove defendant guilty beyond a reasonable doubt, and that if they entertained any doubt on any material point, they must give defendant the benefit of such doubt and acquit him. People v. Tarm Poi, 86 Cal. 225, 24 P. 998; People v. Flannelly, 128 Cal. 83, 60 P. 674; State v. Evans, 12 S.D. 473, 81 N.W. 893.

"It is well-settled law that venue need not be proven by direct and positive evidence. If such facts and circumstances are proven, as the reasonable and rational inference arises that the offense was committed at the place charged, the verdict of the jury will not be disturbed. " Harvey v. Territory, 11 Okla. 156, 65 P. 837; Weinberg v. People, 208 Ill. 15, 69 N.E. 936; Weinecke v. People, 34 Neb. 14, 51 N.W. 307; Brooke v. People, 23 Colo. 375, 48 P. 502; State v. Kincaid, 69 Wash. 273, 124 P. 684; Underhill, Crim. Ev. 2d ed. pp. 59, 61; 13 Enc. Ev. 932.

The courts take judicial notice of such matters as are complained of by defendant here. State v. Fetterly, 33 Wash. 599, 74 P. 810; State v. Meyer, 135 Iowa 507, 124 Am. St. Rep. 291, 113 N.W. 322, 14 Ann. Cas. 1; State v. Cantieny, 34 Minn. 1, 24 N.W. 458, 6 Am. Crim. Rep. 418; Porter v. People, 158 Ill. 370, 41 N.E. 886; Wemble v. State, 107 Ga. 666, 33 S.E. 63.

"When there is a conflict of testimony so that it is a question for the jury, the finding of the jury will not be disturbed." Peterson v. Conlan, 18 N.D. 205, 119 N.W. 367.

OPINION

GRACE, J.

This is an appeal from the district court of Eddy county from an order denying a motion for new trial, the order bearing date July 19, 1916. This is a criminal case involving a charge of rape, and the information duly filed in said action is as follows, to wit:

Information.

R. F Rinker, state's attorney in and for the county of Eddy and the state of North Dakota, in the name and by the authority of the state of North Dakota informs this court that heretofore, to wit: That on the 7th day of February, 1915, at New Rockford in said county and...