State v. Smith

• Decision Date: 26 October 1967
• Docket Number: No. 357,357
• Citation: 153 N.W.2d 691
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Wilson R. SMITH, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 691

153 N.W.2d 691

STATE of North Dakota, Plaintiff and Respondent, v. Wilson R. SMITH, Defendant and Appellant.

Crim. No. 357.

Supreme Court of North Dakota.

Oct. 26, 1967.

Syllabus by the Court

1. A motion for new trial on the ground of insufficiency of the evidence is addressed to the trial court's sound discretion. Such court's determination with respect to the sufficiency of the evidence will not be disturbed on appeal unless an abuse of discretion is shown.

2. It is not an abuse of discretion on the part of the trial court to deny a motion for new trial where there is substantial evidence to support the verdict of the jury.

3. Whether a new trial should be granted on the ground of newly discovered evidence is largely within the discretion of the trial court. Any action taken by the trial court on such motion is conclusive upon this court unless it appears affirmatively that such discretion has been abused.

4. Where the defendant offers as newly discovered evidence a purported bill of sale, allegedly signed by the person from whom the defendant claims to have purchased the property which he is charged with stealing, and where the alleged seller is not produced in person as a witness, and where the notary before whom such purported bill of sale was signed states that he did not know the individual who appeared before him and does not know whether he was the person whose name he signed to the instrument, or someone else, the trial court did not abuse its discretion in denying the defendant's motion for new trial on the ground that such bill of sale was newly discovered evidence.

5. Where the new evidence alleged as ground for a new trial is of such a nature that it is not likely to be believed by a jury, or to change the results of the former trial, the trial court's decision denying the motion is not an abuse of judicial discretion.

Helgi Johanneson, Atty. Gen., Bismarck, and Gordon O. Hoberg, State's Atty., Napoleon, for plaintiff and respondent.

Theodore F. Kessel, LaMoure, for defendant and appellant.

STRUTZ, Justice.

The defendant was convicted of grand larceny of farm machinery and moved for a new trial. The trial court denied his motion, and he appeals to this court from the order denying the motion for new trial, urging two grounds in support of his appeal:

1. That the evidence was insufficient to sustain the defendant's conviction, and that the verdict of the jury was contrary to the evidence; and

2. That the trial court erred in denying the defendant's motion for a new trial on the ground of newly discovered evidence.

The evidence of the State discloses that an Allis-Chalmers tractor, with a dual loader, was stolen from the farm of one Harold Wittmayer in Logan County on May 29, 1966, between the hours of approximately 12:30 p.m. and 1:30 p.m. The State further established that on that date the defendant was the owner of a truck with a flatbed on it and equipped with a hoist and a winch commonly used by machine dealers for loading tractors, combines, and other machinery; that a neighbor of Wittmayer, living about three miles from the complaining witness's farm, saw a flatbed truck go by his place between the hours of 12:30 and 1 p.m. on the 29th day of May, and that loaded on such flatbed was an Allis-Chalmers tractor. The sheriff of Logan County testified that the tracks he found in the field where the tractor had been loaded onto a truck matched the tires on the defendant's truck. The State further produced evidence to show that, on May 30, the morning following the taking of such machinery in Logan County, the defendant was at a machine dealer's place of business near Montevideo, Minnesota, attempting to sell the stolen tractor; that the dealer to whom the defendant attempted to sell the tractor testified that he knew the day on which the defendant appeared at his place of business was the 30th of May because he keeps a complete record, not only of all transactions which he consummates but of all persons who come to his place of business; that a dealer at Benson, Minnesota, testified that the defendant left the tractor on his machinery lot on either the 30th or the 31st day of May 1966; that the evidence of the State further discloses that the defendant later sold the tractor in question to another secondhand dealer in Renville, Minnesota.

The defendant testified that on the day the tractor was stolen he was in Aberdeen, South Dakota, all day; that he went to the cemetery and placed flowers on his mother's grave in the morning of that day; that during the day he called at his sister's home; that he had tires put on his automobile; and that he stayed at the Breeze Inn Motel that night. To corroborate his testimony he produced motel receipts for the nights of May 28, 29, 30, and 31. He denies having been in Montevideo, Minnesota, on May 30, as testified to by a State witness, but claims that he had been there earlier in May and that he was there again sometime in the month of June, at which time he sold the tractor in question. He further testified that he had purchased the stolen tractor and loader from a man whom he knew only as Ralph Bronson, and that such purchase was made at a truck stop in Aberdeen; that he does not recall the exact date on which he purchased the tractor, but that it was sometime after Memorial Day, 1966; that he paid for the equipment in cash; that he received no receipt or bill of sale; and that he did not know the whereabouts of the man whom he knew as Bronson.

On this record, the jury found the defendant guilty and he was sentenced to the State Penitentiary. The defendant thereafter moved for a new trial on the ground that the verdict was contrary to the law and against the evidence, and on the further ground of newly discovered evidence.

We will consider the issues raised on this appeal in the following order:

1. Was the evidence sufficient to sustain the verdict of guilty returned by the jury?

2. Did the trial court err in denying the defendant's motion for new trial on the ground of newly discovered evidence?

A motion for new trial on the ground of insufficiency of the evidence is addressed to the trial court's sound discretion. State v. Shepard, 68 N.D. 143, 277 N.W. 315.

In passing on a motion for new trial based on insufficiency of the evidence, the trial court is clothed with a wide discretion and its determination with respect to such sufficiency will not be disturbed unless an abuse of discretion is shown....