State v. Sogge

• Decision Date: 02 April 1917
• Docket Number: 1915
• Citation: 161 N.W. 1022,36 N.D. 262
• Court: North Dakota Supreme Court

161 N.W. 1022

36 N.D. 262

STATE OF NORTH DAKOTA v. ROGNHILD SOGGE, Elmer Jones, and Betsy Jones

No. 1915

Supreme Court of North Dakota

April 2, 1917

Appeal from District Court, Towner County, C. W. Buttz, J.

Defendants were convicted of manslaughter and from the judgment of conviction and from the order denying a new trial, they appeal.

Reversed.

Reversed and remanded.

Torger Sinness, Clyde Duffy, and Victor Wardrope, for appellants.

The first consideration in every criminal case is the corpus delicti. In homicide this consists of the death of the person claimed to have been killed and the criminal agency. The next consideration is the connection of the defendant with the crime. The first must be established by direct evidence, and the latter by direct or circumstantial evidence to the satisfaction of the jury beyond a reasonable doubt. Campbell v. People, 159 Ill. 9, 50 Am. St. Rep. 134 42 N.E. 123; People v. Benham, 160 N.Y. 402, 55 N.E 11.

Upon a plea of not guilty the confession or admission of the accused, in writing or otherwise, shall in no case be admissible to establish the death of the person alleged to have been killed. Comp. Laws, 1913, § 9459; People v Benham, supra; State v. Pepo, 23 Mont. 473, 59 P 721.

In fact, confessions or admissions are not admissible to establish either element of the corpus delicti. People v. Tapia, 131 Cal. 647, 63 P. 1001; Bradford v. State, 104 Ala. 68, 53 Am. St. Rep. 24, 16 So. 107; Conde v. State, 35 Tex. Crim. Rep. 98, 60 Am. St. Rep. 22, 34 S.W. 286; Bines v. State, 68 L.R.A. 75, note.

It is not sufficient merely to prove the finding of a dead body; it must be shown that it was the body of a human being. State v. Barnes, 47 Ore. 593, 7 L.R.A.(N.S.) 181, 85 P. 998; Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 722; 2 Bishop, Crim. Law, § 632; Jones, Ev. Pocket ed. p. 5; 1 Whart. Crim. Ev. § 27; State v. Williams, 78 Am. Dec. 257, note.

When opinion evidence is given, we must consider the facts upon which it is based. If the facts are such as to repudiate or fail to sustain the opinion evidence, then such evidence must be disregarded. Chybowski v. Bucyrus Co. 7 L.R.A.(N.S.) 357, note; Fleming v. Northern Tissue Paper Mill, 15 L.R.A.(N.S.) 701, note.

Any person present at a post mortem examination may testify as to what he saw, and competent experts may give opinions based on the facts so ascertained. Wharton, Crim. Ev. §§ 421, 422; Self v. State, 90 Miss. 58, 12 L.R.A.(N.S.) 238, 43 So. 945.

In a murder case, where the charge was that the crime was committed by means of morphine, and the defense showed by expert testimony that the symptoms in uremic poisoning were almost the same, and there was a failure to examine the contents of the stomach and bowels, and no direct proof of poisoning, it was held that the jury was not warranted in convicting. State v. Nesenhener, 164 Mo. 461, 65 S.W. 230.

The same doctrine has been followed in many other jurisdictions. Pitts v. State, 43 Miss. 472; Conde v. State, 35 Tex. Crim. Rep. 98, 60 Am. St. Rep. 22, 16 So. 107; Sheppard v. State, 17 Tex.App. 74; Com. v. O'Donohue, 8 Phila. 623; Bines v. State, 68 L.R.A. 48 note, Rex v. Poulton, 5 Car. & P. 329; Rex v. Crutchley, 7 Car. & P. 814; Rex v. Sellis, 7 Car. & P. 850; Lee v. State, 76 Ga. 498; Harris v. State, 30 Tex.App. 549, 17 S.W. 1110; Bines v. State, 118 Ga. 320, 68 L.R.A. 33, 45 S.E. 376, 12 Am. Crim. Rep. 205.

The alleged confessions of defendants should never have been received in evidence. They were not the voluntary statements of the defendants,--statements induced by guilty consciences.

They were obtained by cross-examination of defendants by the state's attorney in the presence of the assistant state's attorney, the sheriff, and his deputies. 2 Whart. Crim. Ev. 1317.

The evidence on this subject shows clearly that the questions asked of the defendant Betsy Jones assumed facts which would go to her guilt, called for an affirmative answer on her part, which, in her excitement and ignorance and fright, she gave. Such answers to such questions are distorted into a "confession" or admission of guilt. None of defendants ever, even under such a system of examination, admitted the child was alive, that they knew it was left to die, or that they killed the child. On the contrary, they protested their innocence. Statements favorable to the accused are entitled to just as much weight as are statements against their interests, if a part of the same statement or so-called confession. 2 Whart. Crim. Ev. 1371; Burnett v. People, 204 Ill. 208, 66 L.R.A. 304, 98 Am. St. Rep. 206, 68 N.E. 505; 3 Brickwood's Sackett, Instructions to Juries, 2515, 2521.

In the absence of a conspiracy, one who is present when a homicide is committed by another, upon a sudden quarrel or in the heat of passion, is not guilty of aiding or abetting the homicide, although he may be involved in an independent fight with others of the party of the deceased, unless he does some overt act with a view to produce that result or purposely incites or encourages the principal to do the act.

One mentally consenting to the commission of a crime, where no express consent either by word or act is given, does not render him guilty of any offense. The defendant Sogge had no part in the crime, if one was committed. Woolweaver v. State, 50 Ohio St. 277, 34 N.E. 352, 40 Am. St. Rep. 667, note; State v. Douglass, 44 Kan. 618, 26 P. 476; Clem v. State, 33 Ind. 418; State v. Cox, 65 Mo. 29; White v. People, 81 Ill. 333; 1 Whart. Crim. Law, § 211; State v. Hildreth, 31 N. C. (9 Ired. L.) 440, 51 Am. Dec. 370; State v. Noakes, 70 Vt. 247, 61 L.R.A. 290, 40 A. 249.

In cases of this character, where physicians or others are called as expert witnesses, and have propounded to them hypothetical questions, such questions should be strictly confined to the evidence already in, and should embrace all the facts covered thereby relating to the point under consideration; and the answers should also be thus confined and restricted, and no such witness should base his answers in any part upon things heard outside of court.

The cross-examination of doctor Bussen clearly showed that he was basing his answers to such questions on matters of hearsay. Whart. Crim. Ev. 853; Manufacturers' Acci. Indemnity Co. v. Dorgan, 22 L.R.A. 620, 7 C. C. A. 581, 16 U. S. App. 290, 58 F. 945; Kerr v. Lunsford, 31 W.Va. 659, 2 L.R.A. 668, 8 S.E. 493.

The so-called confession by Betsy was elicited from her, under cross-examination by the state's attorney, in presence of other officers. She was but sixteen years of age. She was ignorant. She was frightened and much excited. She did not understand much he said to her. She was compelled to talk against her will.

"No person shall be compelled in any criminal case to be a witness against himself." N.D. Const. art. 1, § 13; State v. Height, 117 Iowa 650, 5 L.R.A. 437, 9 Am. St. Rep. 323, 91 N.W. 935; Green v. State, 88 Ga. 516, 30 Am. St. Rep. 167, 15 S.E. 10; State v. Montgomery, 26 S.D. 539, 128 N.W. 718; 1 Greenl. Ev. p. 220; Daniels v. State, 6 Am. St. Rep. 242, note; Ammons v. State, 18 L.R.A.(N.S.) 786, 796, note, and cases cited; Ellis v. State, 65 Miss. 44, 7 Am. St. Rep. 634, 3 So. 188; Cunningham v. Baker, 53 Am. St. Rep. 26, note; Bank of North America v. Rindge, 26 Am. St. Rep. 242, note; 1 Bishop, Crim. Law, p. 1232; Lauderdale v. State, 37 Am. St. Rep. 793, note; Hopt v. People, 28 L.Ed. 262, note; Thornton v. State, 117 Wis. 338, 98 Am. St. Rep. 926, 93 N.W. 1107; State v. Revells, 34 La.Ann. 381, 44 Am. Rep. 436; State v. Allison, 24 S.D. 622, 124 N.W. 747; Bram v. United States, 168 U.S. 532, 42 L.Ed. 568, 18 S.Ct. 183, 10 Am. Crim. Rep. 547.

The trial court charged that "the evidence of circumstances is to be taken by you the same as evidence of direct and positive acts." Again, "all evidence is more or less circumstantial; all statements of witnesses, all conclusions of jurors, are the results of inference. There is no ground of distinction between circumstantial and direct evidence." Such instructions are directly in conflict with the provisions of our statutes, and the decisions of our courts, as well as of other courts. Territory v. Egan, 3 Dak. 119, 13 N.W. 568; Dak. Penal Code, 1877, § 239; Territory v. Bannigan, 1 Dak. 451, 46 N.W. 597; State v. Montgomery, 9 N.D. 405, 83 N.W. 873; People v. Bemmerly, 87 Cal. 117, 25 P. 266; Palmerston v. Territory, 3 Wyo. 333, 23 P. 73; Lovett v. State, 30 Fla. 142, 17 L.R.A. 705, 11 So. 550; Burt v. State, 48 Am. St. Rep. 576, note.

Where a woman is charged with killing her new-born child by neglect or improper care, it is not sufficient to show that she purposely planned to be unattended at the time of its birth, but evidence must be given of neglect towards the child after its birth. Rex v. Izod, 20 Cox, C. C. 690; Rex v. Lewis, 1 B. R. C. 750, note.

Defendants made request for the following instruction: "Before either of these defendants can be convicted of any crime charged in the information it must be proved to your satisfaction beyond a reasonable doubt that such defendant knew the felonious purpose of the defendant Betsy Jones, if there was such felonious purpose. It must be proved to your satisfaction beyond a reasonable doubt that such defendant did some act or spoke some word showing his or her consent to the commission of the crime charged. It must appear to your satisfaction beyond a reasonable doubt that such defendant by some sign, word, or act, contributed to the commission of the offense charged." The court refused to give this instruction, and we believe this refusal was error. Hicks v. United States, 150 U.S. 442, 37 L.Ed. 1137, 14 S.Ct 144; Brooks v. State, 128 Ga. 261, 12 L.R.A.(N.S.) 889, 57 S.E. 483; Com. v. Knapp, 9...