State v. Schonberg
| Decision Date | 11 February 1913 |
| Citation | 140 N.W. 105,24 N.D. 532 |
| Parties | STATE v. SCHONBERG |
| Court | North Dakota Supreme Court |
Appeal from District Court, Rolette County; John F. Cowan, J.
Defendant was convicted of the crime of petit larceny and from the judgment he appeals.
Reversed and remanded.
William Bateson, for appellant.
Before a witness can be impeached, a proper foundation must be laid. Jones, Ev. §§ 845, 846; 1 Greenl. Ev. 16th ed § 461; Krause v. State, 88 Neb. 473, 129 N.W 1020, Ann. Cas. 1912 B, 736; The Charles Morgan, 115 U.S. 69 29 L.Ed. 316, 5 S.Ct. 1172; State v. Hughes, 8 S.D 338, 66 N.W. 1076; Ashton v. Ashton, 11 S.D. 610, 79 N.W. 1001; State v. Hazlett, 14 N.D. 490, 105 N.W. 617; State v. Pirkey, 22 S.D. 550, 118 N.W. 1042, 18 Ann. Cas. 192; Horton v. Chadbourn, 31 Minn. 322, 17 N.W. 865; Taugher v. Northern P. R. Co. 21 N.D. 111, 129 N.W. 747.
Declarations of a party which show motive or intention, are admissible, when such question of motive or intention is material. 16 Cyc. 1184; 1 Greenl. Ev. 16th ed. § 108; 1 Greenl. Ev. § 162; Jones, § 348; Com. v. Trefethen, 157 Mass. 185, 24 L.R.A. 235, 31 N.E. 961; Viles v. Waltham, 157 Mass. 542, 34 Am. St. Rep. 311, 32 N.E. 901; Mutual L. Ins. Co. v. Hillmon, 145 U.S. 285, 36 L.Ed. 707, 12 S.Ct. 909; State v. Hayward, 62 Minn. 474, 65 N.W. 63; Hunter v. State, 40 N.J.L. 495; State v. Dickinson, 41 Wis. 299, 2 Am. Crim. Rep. 1; State v. Hazleton, 15 La.Ann. 72, cited in Wharton, Crim. Ev. 9th ed. § 496, note 6; Mathews v. Great Northern R. Co. 81 Minn. 363, 83 Am. St. Rep. 383, 84 N.W. 101; Cincinnati, I. St. L. & C. R. Co. v. Howard, 124 Ind. 280, 8 L.R.A. 593, 19 Am. St. Rep. 96, 24 N.E. 892; Denver & R. G. R. Co. v. Spencer, 25 Colo. 9, 52 P. 211; Lake Shore & M. S. R. Co. v. Herrick, 49 Ohio St. 25, 29 N.E. 1052, 10 Am. Neg. Cas. 8.
Whether a person can read, speak, or understand English is a question of fact, which may be testified to by others having knowledge. Gibbs v. State, Tex. Crim. Rep. , 20 S.W. 919; Re Cross, 85 Hun, 343, 32 N.Y.S. 933; Wren v. Howland, 33 Tex. Civ. App. 87, 75 S.E. 894.
Possession of recently stolen property is not presumptive evidence of guilt. Tomerlin v. State, Tex. Crim. Rep. , 26 S.W. 214; Lee v. State, 27 Tex.App. 475, 11 S.W. 483; Oxier v. United States, 1 Ind. Terr. 85, 38 S.W. 331; State v. Walters, 7 Wash. 246, 34 P. 938, 1098; Ingalls v. State, 48 Wis. 647, 4 N.W. 785; Blaker v. State, 130 Ind. 203, 29 N.E. 1077; Stover v. People, 56 N.Y. 315; State v. Harras, 25 Wash. 416, 65 P. 774; Engleman v. State, 2 Ind. 91, 52 Am. Dec. 494; State v. Mandich, 24 Nev. 336, 54 P. 516; Metz v. State, 46 Nev. 547, 65 N.W. 190; State v. Deuel, 63 Kan. 811, 66 P. 1037; State v. Hoshaw, 89 Minn. 307, 94 N.W. 873; State v. Rosencrans, 9 N.D. 163, 82 N.W. 422.
All proper arguments of counsel are entitled to consideration by the jury as a part of the entire case. To charge the jury to ignore them is error. Rev. Codes 1905, Sec. 9984; Chicago Union Traction Co. v. O'Brien, 219 Ill. 303, 76 N.E. 341; People v. Ambach, 247 Ill. 451, 93 N.E. 310; Reeves v. State, 34 Tex. Crim. Rep. 483, 31 S.W. 382; People v. Hite, 8 Utah 461, 33 P. 254; Long v. State, 23 Neb. 33, 36 N.W. 310; Zilke v. Johnson, 22 N.D. 75, 132 N.W. 640.
D. J. McLennan, State's Attorney, Andrew Miller, Attorney General, C. L. Young, Assistant Attorney General, and Frederick T. Cuthbert, respondent.
Assignments of error should specifically point out wherein error is claimed. Flora v. Mathwig, 19 N.D. 4, 121 N.W. 63.
The prior statement of a witness, in order to be provable for impeachment purposes, must be contradictory to or inconsistent with his testimony, and must relate to a material matter. 40 Cyc. 2701; Wharton, Crim. Ev. p. 993; Underhill, Crim. Ev. § 240.
The possession of recently stolen property not satisfactorily explained, is an evidential fact from which complicity in the larceny may be inferred. State v. Rosencrans, 9 N.D. 163, 82 N.W. 422; State v. Drew, 179 Mo. 315, 101 Am. St. Rep. 481, 78 S.W. 594.
The charge of the court upon reasonable doubt was proper, and not stronger than others approved by courts. Vann v. State, 83 Ga. 44, 9 S.E. 945; Dunn v. People, 109 Ill. 635, 4 Am. Crim. Rep. 52; State v. Ostrander, 18 Iowa 459; State v. Pierce, 65 Iowa 90, 21 N.W. 195; McGuire v. People, 44 Mich. 286, 38 Am. Rep. 265, 6 N.W. 669; 2 Thomp. Trials, §§ 2479-2488.
Defendant was convicted in the district court of Rolette county of the crime of petit larceny, and was fined in the sum of $ 25 and the costs of the prosecution, and sentenced to the county jail of said county for the period of thirty days, or until such fine and costs are paid. From the judgment thus entered, he appeals, and the errors assigned relate solely to certain rulings excluding testimony offered by appellant at the trial, and to the instructions of the court to the jury. Such assignments of error are grouped under certain general propositions which are set forth in the brief and will be considered in the order thus presented. Before noticing such assignments a brief statement of the facts is necessary to a proper understanding of the questions presented.
The information charges the larceny on November 3, 1911, of one complete set of slats and chain of a threshing-separator feeder, a complete chain and pulley sprocket and guide of a separator grain elevator, one leather belt about 3 inches wide, and one pulley shaft, the property of one Alex McKay, John Gardner, and John Wayne, known as McKay & Company. No proof was offered at the trial of the larceny of the pulley shaft, leather belt, or guide; and the evidence was confined entirely to the allegations as to the alleged larceny of the feeder slats and chains described in the information. For a further statement of the facts we here quote from appellant's brief as follows:
"The principal points in the evidence introduced by the state were that McKay & Company owned a threshing outfit in the fall of 1911, which was situated on November 3d, 1911, on the west side of Mount Pleasant township in Rolette county, North Dakota, and on the east side of the section line dividing that township from the Turtle Mountain Indian Reservation. November 3d, 1911, was on Friday. On the Tuesday prior to November 3d, the machine owned by McKay & Company was seen last by the owners, and at that time it was complete with all its fixtures and attachments. The feeder was up and ready for moving. The machine was not seen by them after that until the afternoon of November 3d. Then it was found that the feeder was down and that the slats had been uncoupled and removed, with the chains, the lower pulley, and the sprocket wheel.
The state introduced evidence showing the nature of the separator feeder. The feeder slats which had been removed were connected by chains at either end, which chains operated upon a sprocket wheel, somewhat similar to the canvas upon a binder. The purpose of the feeder slats was to elevate the grain into the separator. The length of the slats, chained together, when uncoupled and stretched out, was about 16 feet, and there were from 20 to 25 slats upon the chain. They were not new slats, but had been used considerably and were worn smooth. The corners of some of the slats had been worn off. These were the slats, and this was the part of the separator which was missing on the afternoon of November 3d.
The state also introduced evidence that showed that one John Dunlop had seen the McKay threshing outfit on November 2d at about 4 o'clock in the afternoon, and that at that time the feeder, with the slats upon it, was intact; also, that on the morning of November 3d the said John Dunlop passed the defendant Schonberg on the road which passes the place where the machine stood. The defendant was coming from the machine and going towards his home. The defendant was driving a wagon, and Dunlop testified that he saw slats, connected with chains, in a bundle in the back of this wagon. Dunlop passed the defendant and went along the road toward the machine. When he passed it he noticed that the feeder was down and that the feeder slats were gone.
The state also introduced evidence by one Henry Meunier that he also saw the defendant on the 3d day of November, in the morning, on the road by the McKay machine, that the defendant had a buckboard buggy, and in the back end of the buggy a bundle of feeder slats, with chains on the slats. Said Meunier afterwards passed the McKay separator, and testified that the slats were then gone from the feeder, and the feeder was down.
The theory of the defense, on the trial of the case, was that the defendant got the slats which he had in the buggy on the morning of November 3d, from an old separator belonging to Harrington & Flynn, of Rolla; that he had made arrangements with them long before for the purchase of whatever slats he needed.
The defendant himself was interested in operating a threshing machine in the fall of 1911, and on the 3d day of November and for some days prior thereto had been threshing at the home of Alex Charlebois. Alex Charlebois's place, where the machine was working, was about 14 miles from where the McKay machine stood. On the afternoon of November 2d the defendant's machine broke down, some of the feeder slats being broken. The defendant's evidence showed that the feeder was repaired on the afternoon of the 2d after about one hour's delay, and thereafter continued to thresh without stopping, except to lay up for the night, until threshing was completed at Charlebois's. They had some extra slats, and made the repairs then and there. However it was thought best by the defendant to get some additional supplies in case of another breakage, so in the afternoon of November 2d the...
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