State v. Seeb
| Decision Date | 26 April 1949 |
| Docket Number | 218. |
| Citation | 37 N.W.2d 341,76 N.D. 473 |
| Parties | STATE v. SEEB. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. The district court has no authority to prevent the jury from rendering a verdict in a criminal case. It is not error to deny a motion for directed verdict for the defendant.
2. The non-marriage status of the defendant and the prosecutrix in a rape case may be shown by the facts and circumstances proven on the trial as well as by direct evidence.
3. The district court will take judicial notice of the boundary lines of its jurisdiction and that an act done or a crime committed at any place within such boundary lines is within such jurisdiction; of the limits of a county and the fact that a place proved was within such limits; of the lines of the counties and the townships, villages, and cities contained therein; and of the topography of the country. NDRC 1943, Sec. 31-1002, Subds. 4, 35, 36, and 54.
4. The record is examined and it is held that there was sufficient evidence of the non-marriage status of the defendant and the prosecutrix and of the situs of the crime to warrant the verdict of the jury.
E J. McIlraith, of Minot (Walter O. Burk, Williston, on the brief), for appellant.
Wallace E. Warner, Atty. Gen., and H. L. Halvorson, Jr., State's Atty., C. B. Davis, Asst. State's Atty., and Joseph J Funke, all of Minot, for respondent.
The defendant Art (Arthur) Seeb was tried in the district court of Ward County on a charge of having committed the crime of assault with intent to commit rape. At the close of the State's evidence the defendant moved for a directed verdict in his favor on the ground 'that the State has wholly failed to prove the essential allegations of the crime charged in the information.' The motion was denied. Thereupon the defendant took the witness stand and presented his side of the case. When both sides had rested the defendant moved 'that the jury be directed to return a verdict acquitting the defendant of the crime of 'assault with intent to commit rape' upon the ground that the State had wholly failed to prove the allegations of the information.' The motion was again denied. The jury found the defendant guilty. A motion for a new trial was made on the grounds that the court erred in denying the two motions for directed verdict, and, further, that the verdict was contrary to the law and clearly against the evidence adduced on the trial. The court denied the motion. An appeal was taken from the order denying the motion for new trial and the same grounds were assigned as specifications of error on the appeal.
There was no error in the denial by the court of the motions to direct a verdict for the defendant on the ground that the State had failed to prove assault with intent to commit rape. Under our statutes the court has no authority to direct a verdict in criminal cases. The court may advise the jury to acquit the defendant. 'But the jurors are not bound by the advice nor can the court, for any cause, prevent the jury from giving a verdict.' NDRC1943, Sec. 29-2137. That applies to any crime included in the information. No error can be predicated on a refusal to advise or direct a verdict. State v. Wright, 20 N.D. 216, 126 N.W. 1023, Ann.Cas.1912C, 795. See, also, Note: 17 A.L.R. 910, 936.
The State's Attorney at the close of the State's case announced 'If it may please the court I have inquired of Mr. Burk and he is willing to stipulate that Miss Brieher and Mr. Seeb are not married; that the situs was in Ward County.' Immediately thereupon the State rested and the defendant made his motion for a directed verdict.
The inference from the record is that Mr. Burk, the defendant's attorney, was present and made no objection to the State's Attorney's announcement. That must be regarded as an assent thereto. William H. Lowe Estate Co. v. Lederer Realty Co., 39 R.I. 422, 98 A. 180. His subsequent examination of the defendant and conduct of the case indicates his acquiescence in such stipulation. The evidence hereinafter set out fully justified him therein. In any event under the circumstances the jury had the right to consider the evidence in the light of that undisputed announcement.
The only questions now raised are on the sufficiency of the evidence with regard to the non-marriage status of the defendant and the prosecutrix and the situs of the crime. The jury were properly instructed that both these matters as well as all the other material allegations of the information had to be proven beyond a reasonable doubt before the defendant could be found guilty of the crime charged.
That the defendant and prosecuting witness were not husband and wife may be proven by indirect as well as direct evidence. As said in the case of State v. Johnson, 58 N.D. 832, 227 N.W. 560, 563, 'like any other fact, it may be proved by facts and circumstances from which the conclusion [of nonmarriage] may be drawn.'
The evidence in the case at bar shows that the prosecutrix was a young girl only 17 years of age;...
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