State v. Rosencranz

• Court: North Dakota Supreme Court
• Writing for the Court: BIRDZELL, J.
• Citation: State v. Rosencranz, 40 N.D. 93, 168 N.W. 650 (N.D. 1918)
• Decision Date: 21 June 1918

168 N.W. 650

40 N.D. 93

STATE OF NORTH DAKOTA, Respondent, v. HOBART ROSENCRANZ, Appellant

Supreme Court of North Dakota

June 21, 1918

Appeal from Ramsey County District Court, C. W. Buttz, J. Affirmed.

Affirmed.

D. J O'Connell, for appellant.

It has been held, under statutory provisions similar to those of this state, that when the jurors selected from the regular panel are absent considering their verdict in another case the court may summon or order a second jury on a special venire; but otherwise the right to summon a second jury is denied.

A defendant is entitled to a trial by jurors of the regular panel. Bates v. State, 19 Tex. 122; Dean v. State 100 Ala. 102, 14 So. 762.

A person charged with the commission of a crime cannot be held where the only evidence offered shows that he was merely in the crowd, and that someone else without his knowledge or participation used a weapon, and a crime was committed. Comp. Laws 1913, § 9218; Bibby v. State (Tex. Crim. Rep.) 65 S.W. 193; Brown v. State, 28 Ga. 199.

Where the defendant had no knowledge of the presence of a dangerous weapon, and took no part in the act and did nothing to produce the result that followed, unless the act was done pursuant to a conspiracy previously formed, he should not be held responsible. Woolweaver v. State, 50 Ohio St. 277, 40 Am. St. Rep. 667, 34 N.E. 352; R. v. Caton, 12 Cox, C. C. 624; State v. May, 142 Mo. 135, 43 S.W. 637.

The established rule is that where for instance two men combine to fight a third with fists, and death accidentally results from a blow inflicted by one, the other also is responsible for the homicide. But, if one resort to a deadly weapon without the knowledge or consent of the other, he only is liable. State v. Howard, 112 N.C. 859, 17 S.E. 166; Cecil v. State, 44 Tex. Crim. Rep. 450, 72 S.W. 197; Williams v. State, 81 Ala. 1, 60 Am. Rep. 133, 1 So. 179; State v. Darling, 216 Mo. 450, 115 S.W. 1002.

The proof must show beyond a reasonable doubt that defendant had knowledge of the use of the weapon by his codefendant, and by some act of defendant he aided and abetted in the commission of the crime. Bibby v. State, supra.

J. H. Ulsrud, State's Attorney, and F. T. Cuthbert, for respondent.

It is not error to bring to trial a criminal action before a special panel of jurors regularly summoned by the judge of the district court, the regular panel having finished its work and having been discharged. Objection to such procedure is purely technical and without merit. Nothing is disclosed to show that defendant did not have a fair trial. Comp. Laws 1913, § 11,013; State v. Travy, 34 N.D. 498.

Clearly the district court has the power to so order. Comp. Laws 1913, §§ 815, 829; Greene v. State, 53 Tex. Crim. Rep. 490, 22 L.R.A. (N.S.) 706, 110 S.W. 920; Queenan v. Oila, 11 Okla. 261, 61 L.R.A. 324; Johnson v. State, 59 N.J.L. 535, 38 L.R.A. 373; Pitsnogle v. Western Maryland R. Co., 119 Md. 673, 46 L.R.A. (N.S.) 324, 87 A. 917.

The provisions of the statute relating to the summoning of jurors is directory, and not mandatory, and prejudice must be shown for any irregularity. 16 R. C. L. §§ 48, 49; Levy v. Wilson (Cal.) 10 P. 272; State v. Mayo, 42 Wash. 540, 7 Ann. Cas. 881; Elias v. Territory, 1 Ariz. 1153; Dean v. State, 100 Ala. 102.

"Where several persons are acting together with a common intent and design to commit a crime, and each performs some part of the crime, they are all guilty as principals, although all are not actually present when the offense is finally consummated. They are present in the eye of the law at the place of the crime, where each and all in their own station co-operate to a common end." Spies v. People, 122 Ill. 1, 3 Am. St. Rep. 321; 12 Cyc. 183; Com. v. Knapp, 9 Pick. 496, 20 Am. Dec. 491; Re Jaques, 5 N.Y. City Hall Rec. 77.

BIRDZELL, J. CHRISTIANSON, J., did not participate, and the Honorable FRANK FISK, Judge of the Eleventh Judicial District, sat in his place.

OPINION

BIRDZELL, J.

This is an appeal from a judgment of the district court of Ramsey county, entered upon the verdict of a jury which found the defendant guilty "of the crime of assault and battery with a dangerous weapon with intent to do bodily harm without a justifiable or excusable reason."

It appears that the assault of which the defendant was convicted was committed on one Halvor Ekre, under the following circumstances: Ekre lived at Denbigh, North Dakota, and upon the evening of the date of the alleged assault, July 11th, was en route to his home in an automobile with his family. As they rode along the highway leading toward their home, their car struck some obstacle and about the same time some shots were heard. Ekre promptly stopped the car, and as he did so the defendant and his son Martin were seen coming from the wheat field on the right-hand side of the road, and another son Rance, from the wheat field on the left side. It appears that the defendant approached the car, seized Ekre about the head, struck him several blows with his fist, and pulled him out of the car. It further appears that Martin Rosencranz struck Ekre over the head with a club or ball bat, rendering him unconscious.

The first assignment of error argued by the appellant is that the court erred in denying the defendant's challenge to the panel of jurors. It appears that the regular jury panel which had been called for the term had been discharged by the court and an entire new panel ordered. It seems that prior to the convening of the regular November term of the court a petit jury had been regularly called, and that the court remained in session for a period of about three weeks, trying cases with the aid of the jury so impaneled. Sufficient reasons existed for the nonattendance of six of the panel, and six more were excused from service by the court. After the somewhat protracted session of the November term, it became necessary to adjourn the term to a date in January. Upon adjournment, the trial court discharged the jury and issued an order for a new panel. Section 815 of the Compiled Laws of 1913 provides that "no jury shall be summoned except by order of the judge of the district court, who shall issue an order...