State v. Rohrich

• Decision Date: 13 May 1965
• Docket Number: No. C,C
• Citation: 135 N.W.2d 175
• Parties: STATE of North Dakota, Respondent, v. Clarence ROHRICH, Defendant and Appellant. r. 318.
• Court: North Dakota Supreme Court

Page 175

135 N.W.2d 175

STATE of North Dakota, Respondent, v. Clarence ROHRICH, Defendant and Appellant.

No. Cr. 318.

Supreme Court of North Dakota.

May 13, 1965.

Syllabus by the Court.

1. A statement made by a witness during the course of a trial is material if it has a legitimate tendency to prove some fact that is material, irrespective of the main fact at issue.

2. In a trial for perjury the alleged false statements of the accused may be proved by anyone who heard them.

3. The credibility of witnesses and the weight of be given to their testimony qre questions of fact for the jury.

4. Cross-examination of a character witness as to the reputation of the accused's brother was not material to the accused's reputation nor to test the witness's knowledge of that reputation.

5. Constitutional and statutory provisions which require the presence of an accused at a trial for felony are for the benefit of the accused and may be waived.

6. Where a view by the jury is allowed in a criminal case, it is the mandatory duty of the trial judge to attend such viewing, and his failure to so attend will be deemed prejudicial error.

7. Upon an appeal in a criminal case, separate specifications of error are not necessary and error assigned in the brief and appearing in the record will be considered by the Supreme Court.

Lanier, Knox & Shermoen, Fargo, (F. C. Rohrich, Linton of Counsel), for appellant.

Albert A. Wolf, State's Atty., Bismarck, for respondent.

BURKE, Chief Justice.

Appellant-defendant in this case was convicted of the crime of perjury in the District Court of Burleigh County. He has appealed from the judgment of conviction. The charge of perjury arose out of defendant's testimony in a case wherein he was charged in police magistrate's court with driving a motor vehicle at a speed of thirty-five miles an hour in a zone in which the speed limit was twenty-five miles an hour. At the trial in police magistrate's court, the police officer, who made the speeding charges, testified that he clocked the defendant at a speed of thirty-five miles an hour while defendant was traveling east on Main Avenue from Sixth Street to Eighth Street; that at the intersection of Eighth Street and Main Avenue, defendant turned north into Eighth Street which at this point is a dead end street which ends half a block north of Main Avenue; that defendant stopped at the dead end and he (the officer) served the defendant with a summons for traffic violation at this location.

At Ninth Street and Main Avenue, one block east of the corner where the police officer said the defendant turned north, the speed limit changes to thirty-five miles an hour for the zone east of Ninth Street. Defendant testified that he did not turn north at Eighth Street and Main Avenue as testified to by the officer but that he turned north at a point on Main Street about two blocks east of Ninth Street, and it was in this location that the traffic summons was served. The defense to the traffic charge was that if the speed of defendant's car had been clocked at thirty-five miles an hour in the two blocks immediately west of the place where the defendant turned to the north, there was no violation because those two blocks were in a zone where the speed limit was thirty-five miles an hour.

After the trial upon the charge of speeding defendant was charged with perjury. In the information it was alleged: '* * * that * * * said defendant did then and there wilfully and unlawfully and having taken an oath before a competent person, namely David L. Milhollan, Police Magistrate of the City of Bismarck, that he would testify truthfully in a trial before said magistrate, did make a false statement which he did not believe to be true, and which statement was material to the issues in said trial.' Defendant pleaded 'not guilty' to this information.

At the trial upon the charge of perjury, the substance of defendant's testimony in police magistrate's court was testified to by the assistant city attorney who prosecuted that case and by the police magistrate. The police officer who had made the speeding charge testified that, contrary to defendant's testimony, defendant's speed had been clocked and the traffic summons had been served in a twenty-five mile an hour speed zone. With respect to the place of the service of the summons he was corroborated by two witnesses who stated that they saw the officer stop the defendant's car. None of this testimony was contradicted at the perjury trial.

Upon this appeal there are fifteen specifications of error. We shall consider first those which relate to the sufficiency of the evidence to sustain the verdict. Counsel for defendant urges that the evidence is insufficient because,

(1), the alleged false statements of the defendant were not material to the issues in the trial of the speeding charge in police magistrate's court;

(2), the witnesses at the perjury trial did not testify as to the substance of defendant's testimony in police magistrate's court but only as to its effect; and

(3), that the memories of the witnesses as to defendant's testimony in police magistrate's court were not sufficiently accurate to be a basis for a prosecution for perjury.

None of these objections to the sufficiency of the evidence can be sustained. The main issue in the trial in police magistrate's court was whether the defendant had exceeded the speed limit. Testimony as to the location where defendant's rate of speed was timed was material to establish that defendant had violated the speed limit at that place. At the trial in police magistrate's court the police officer testified that he had timed the defendant's speed at thirty-five miles an hour for a distance of two blocks immediately west of the point where he stopped the defendant and that all of the incidents to which he testified took place west of Ninth Street in a twenty-five mile an hour speed zone. Defendant testified that he had been stopped two blocks east of the beginning of the thirty-five mile an hour speed zone. This testimony was material for two reasons; first, it challenged the credibility of the officer's entire testimony, and second, if the officer's testimony, that he timed the defendant's speed at thirty-five miles an hour in the two blocks immediately west of the location where defendant was stopped, and defendant's testimony as to the place where he was stopped was accepted as true, there was no offense because the speed limit was thirty-five miles an hour in that area. A statement made by a witness during the course of a trial is material '* * * if it has a legitimate tendency to prove or disprove some fact that is material, irrespective of the main fact at issue.' 41 Am.Jur. (Perjury, Sec. 13) 10. 'The test of materiality is whether a false statement can influence the tribunal * * *' in arriving at a decision. 70 C.J.S. Perjury Sec. 11, p. 466.

It is clear that the false statements defendant was alleged to have made at his trial in police magistrate's court were statements of the facts upon which his defense to the charge of speeding was predicated. They were clearly material.

The question of whether the state's witnesses testified to the substance of defendant's testimony in police magistrate's court or to its effect is largely a question of semantics. How a witness may characterize his own testimony is unimportant. What is important, is his testimony as to the facts. The witness Saefke testified as follows:

'Q. Do you remember with certainty what questions were asked of him by his counsel and the answers to them?

'A. Not verbatim.

'Q. Do you recall the substance of those questions and the answers given?

'A. Yes, Sir.

'Q. Would you relate to the jury what the defendant's testimony was as elicited by counsel there at that hearing insofar as it relates to the place of the arrest?

'A. The place of his arrest in his testimony was that he had turned north from Main Avenue at the * * * east of Phillip's 66 Station which was across the street from Simonson's Gas.'

Concerning the defendant's testimony at the prior trial the Police Magistrate testified: 'He did specifically recall then (sic) making a left-hand turn approximately two blocks past the intersection of Ninth and Main. He stated that he recalled making the left turn, and after making the turn the Phillip's 66 Station...