State v. Rodman
| Decision Date | 24 September 1928 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Williams County, Lowe, J.
Affirmed.
Fisk Craven, & Taylor and George A. Bangs, for appellant.
The attorney general and his assistants may appear before the grand jury. State v. District Ct. 19 N.D. 819, 124 N.W. 417.
The office of state's attorney is a constitutional office and the state's attorney must be an elector of the county in which he is elected, and his assistant cannot be a nonresident. State Const. § 173; Ex parte Corliss, 16 N.D. 470, 114 N.W. 962.
Every elector is eligible to the office for which he is an elector except when otherwise specially provided; and no person is eligible who is not such an elector. Comp. Laws 1913, § 19.
Witnesses are not permitted to testify generally as to the value of such paper (promissory notes of individuals) but must confine their evidence to facts which bear upon the question of value. Anderson v. First Nat. Bank, 6 N.D. 497, 72 N.W. 916.
But a summary or tabulation of books of account is not a copy of such books and such a summary cannot be made the vehicle to carry incompetent copies to the jury. Cresswell v Slack, 68 Iowa 110, 26 N.W. 42; Halstad v. Cuppy, 67 Iowa 600, 25 N.W. 820.
As a usual rule the books of a corporation or entries made therein are admissible as evidence in litigation by a corporation with its members, stockholders, or third parties. Bacon v. United States, 38 C.C.A. 37, 97 F. 35; State v. Cutts, 24 Idaho 329, 133 P. 115.
George F. Shafer, Attorney General, E. R. Sinkler, and Gustav A. Lake, State's Attorney, for respondent.
Ex parte McCardle, 7 Wall. 506.
"A statutory right to have cases reviewed on appeal may be taken away, by repeal of the statute, even as to causes which have been previously appealed." Cooley, Const. Lim. p. 548.
"Time may be shortened during a period of disability, in which one may bring an appeal after such disability is removed." Rupert v. Martz (Ind.) 18 N.E. 381.
"An act changing the time in which petitions in error must be filed from three years from date of the judgment to two years, applies to all judgments rendered after its passage." Ewell v. Amer. L. Ins. Co. (D.C.) 6 Ohio L.J. 339.
"With one exception, the authorities are uniform and direct that where a person is disqualified by constitutional or statutory provision from holding an office . . . the fact cannot be shown for the purpose of impeaching the validity of the act done by him as an officer de facto." Throop, Pub. Off. § 636.
"It is well settled that the validity of the acts of a de facto officer cannot be attacked in a collateral proceeding." Cleveland v. McCanna, 7 N.D. 455, 75 N.W. 908.
"Where an attorney employed to assist in the prosecution was present at the request of the district attorney before the grand jury during their investigation of the case, held, that this was no ground for setting aside the indictment or reversing a judgment on it." State v. Whitney, 7 Or. 386.
"Where the court can see from the record that the evidence is so overwhelmingly against the accused that, had the jury been correctly instructed they must still have found against him, a judgment of conviction will not be reversed for error of instruction." Walker, Crim. Proc. 59e.
"It has been repeatedly held that the legislature has the right to declare what shall be presumptive or prima facie evidence of any fact." Holmes v. Hunt, 122 Mass. 505, 23 Am. Rep. 381; State v. Hurley, 54 Me. 562; Board of Excise v. Merchant, 103 N.Y. 143, 57 Am. Rep. 705.
"When it is necessary to prove the results of voluminous facts, or the examination of many books and papers, and the examination cannot be made conveniently in court, the results may be made by the person who made the examination." Burton v. Driggs, 20 Wall. 136.
"A general objection is insufficient if the offered evidence is admissible for any purpose in the case." Sneed v. Osborn, 25 Cal. 619; People v. Place, 52 N.E. 576; Bates v. Morris, 13 So. 138.
"Error cannot be predicated upon the failure of the court to charge." State v. Glass, 29 N.D. 634; State v. Woods, 24 N.D. 156.
Burr, J. Nuessle, Ch. J., and Birdzell and Christianson, JJ., and Wolfe, Dist. J., concur. Burke, J., being disqualified, did not participate; Honorable Charles E. Wolfe, Judge of the Third Judicial District, sitting in his stead.
OPINIONThe defendant was indicted by the grand jury of Williams county for the crime of knowingly permitting, conniving, and being accessory to, the acceptance and receiving of money on deposit in an insolvent bank. The indictment had in view the provisions of §§ 5175, 5176 and 5189 of the Compiled Laws of 1913.
When arraigned upon the indictment the defendant moved to have the same set aside on the ground that an unauthorized person was permitted to appear before the grand jury to assist them in the discharge of their duties. The court denied this motion. No demurrer was interposed, and upon the refusal to set aside the indictment the defendant entered his plea of not guilty. Upon trial the defendant was convicted of the crime of knowingly permitting, conniving and being accessory to, the acceptance and receiving of money on deposit in an insolvent bank, knowing said bank to be insolvent as alleged in the indictment. Motion for a new trial was made upon the grounds afterwards urged on this appeal. When the court denied this motion the defendant appealed.
There are 319 specifications of error in the record; 5 volumes -- 1670 pages -- of testimony; 289 exhibits; 2 volumes -- 432 pages -- of appellant's brief; one volume -- 162 pages -- of respondent's brief; and 93 pages of memorandum in reply. The case therefore demanded some reasonable length of time for examination on appeal.
The 319 errors classify as follows: One dealing with the refusal of the court to set aside the indictment; 156 dealing with overruling objections to question; 10 refusals to strike out evidence; 107 in reception of exhibits; 28 in sustaining objections to questions; 2 in striking out evidence; 8 alleged errors in instructions to the jury; and 7 errors alleged in denying requests for instructions.
The defendant arranges his brief under sixteen heads; the first dealing with the indictment; second and eighth with the general allegations of the insufficiency of the testimony; third, with the charge of the court regarding insolvency; fourth, fifth, ninth, tenth, eleventh, twelfth, with the admission of exhibits; 12, 51, 53 B-C-D, 286, 55 A-B-D, 58 A-B-C, 59 C-D, 62 B, 54 A, 22, 24, 6, 11 A, 11 JK, 11 AS, 11 AT, 11 AU, 11 AV, 11 AZ, 11 BE and 11 BF; seventh with the testimony tending to establish commission of other offenses; sixth, thirteenth, fourteenth, fifteenth and sixteenth, with the testimony of witnesses Murphy, Van Sickle, and Blegen.
At the outset of the case we are confronted with a motion to dismiss the appeal on the ground that it is taken too late. The defendant was convicted on the 11th day of December, 1924, and judgment of conviction was entered that day. The notice of appeal was not served until the 27th day of November, 1925, and not filed until the 5th day of December, 1925. At the time judgment was entered the defendant had one year in which to appeal to the supreme court. See § 10,994 of the Comp. Laws 1913. Thus his time to appeal would not expire until the 11th day of December, 1925. However, on March 7th, 1925, the legislature amended § 10,994 by limiting the time for appeal to six months from the time judgment was rendered. This statute went into effect the first day of July, 1925. See chap. 125, Sess. Laws 1925. By this time more than six months had expired from the time judgment had been entered and it is the contention of the state the right of appeal was thus automatically cut off. The state argues that as there were no exceptions in this amendatory statute, it therefore applies to all appeals -- those pending, as well as those which might be taken after the law went into effect. It is true this chapter is general in its tenor, and applies to appeals from all judgments whether entered before or after it became effective, -- that is, judgments entered before July 1st could not be appealed after January 1st of the succeeding year. We have had occasion to construe a very similar statute with reference to civil appeals. In 1913 the time for taking appeals in civil actions was changed from one year to six months. See § 14, chapter 131, Sess. Laws 1913. The language was as general as is the language of chapter 125, Sess. Laws 1925. This court held, in Wilson v. Kryger, 26 N.D. 77, 51 L.R.A.(N.S.) 760, 143 N.W. 764, that such provision did not have a retrospective effect so as to cut off appeals from all judgments entered more than six months prior to the taking effect of the statute, but simply meant appeals from these judgments would be governed by the old statute except the time for appeal could not be prolonged past six months from the date of the taking effect of the statute. In the case at bar the defendant had a little over five months left of his year when this new act went into effect, and he appealed within that time and within six months from the passage of the statute. The appeal was taken in time.
The motion to quash the indictment is based on the allegation that an unauthorized person was permitted to appear before the grand jury and to give information and advice.
The...
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