State v. Stepp

• Citation: 48 N.D. 566,185 N.W. 812
• Parties: STATE v. STEPP.
• Decision Date: 05 December 1921
• Court: United States State Supreme Court of North Dakota

48 N.D. 566

185 N.W. 812

STATE

v.STEPP.

Supreme Court of North Dakota.

Dec. 5, 1921.

Syllabus by the Court.

For reasons stated in the opinion, the trial court did not err in making an order appointing special counsel to assist the state's attorney in the prosecution of this case.

Where a defendant enters a plea of not guilty to a criminal information, the issue framed by such plea remains until disposed of in some proper manner. Such plea is not deemed withdrawn because the defendant subsequently moves to quash the information on the ground that it does not state facts sufficient to constitute a public offense.

Whether a new trial shall be granted on the ground of newly discovered evidence is primarily a question for the trial court. The function of the appellate court is merely to review the ruling of the trial court to ascertain whether in ruling as it did the trial court abused the sound, judicial discretion with which it is vested. In the instant case the appellate court, for reasons stated in the opinion, is unable to ascertain, upon the record before it, what the trial court actually found upon the controlling facts, and for that reason the order denying a new trial is set aside and the cause remanded, with directions that the trial court hear and determine anew the motion for a new trial.

Appeal from District Court, Ramsey County; Buttz, Judge.

Hiram J. Stepp was convicted of rape in the first degree, and from the judgment and a denial of a new trial he appeals. Reversed and remanded, with directions to hear the motion for new trial anew.J. F. T. O'Connor and C. P. Peterson, both of Grand Forks, for appellant.

G. Grimson, State's Atty., of Langdon, Fred J. Traynor, Sp. Asst. State's Atty., of Devils Lake, and Wm. Lemke, Atty. Gen., for the State.

CHRISTIANSON, J.

The defendant was convicted of the crime of rape in the first degree in the district court of Ramsey county, on a change of venue from the district court of Cavalier county, and sentenced to 2 1/2 years' imprisonment in the state's penitentiary. After sentence had been imposed, defendant moved for a new trial, which was denied, and he has appealed from the judgment and from the order denying a new trial.

[1] The first assignment of error is to the effect that the court erred in appointing and permitting Fred J. Traynor to act as special assistant state's attorney in the prosecution of the case over the objection of the defendant. This question was considered upon a former appeal in this case. See State v. Stepp, 178 N. W. 951-953. As appears from the opinion in that case, Mr. Traynor was appointed by the district court as assistant state's attorney and assisted in the prosecution upon the first trial of the case. After the case was remanded by this court for a new trial, Mr. Traynor was appointed an assistant attorney general for the purpose of assisting in the prosecution of this case, such appointment being made by the Governor under chapter 20, Laws Special Session 1919. The record also shows that the judge who presided upon the trial of this case heard both the state's attorney and the counsel for the defendant before he made the order appointing Mr. Traynor to assist the state's attorney in the prosecution of this action. We are entirely agreed that in the circumstances the trial court did not err in making such order.

[2] It is next contended that the conviction should be set aside for the reason that the defendant did not enter any plea to the information before the commencement of the trial, and was not afforded an opportunity to do so. In support of this contention the defendant points out that the record on this trial of the action does not show that the defendant either entered a plea or was afforded an opportunity to do so; also, that the record shows that upon this trial defendant's counsel made an oral motion to quash the information on the ground that it did not state facts sufficient to constitute a public offense, or any offense, under the statute. It is contended that when the defendant moved to quash the information, he in effect withdrew any plea formerly entered; and that the consideration and denial of this motion by the trial court, in effect, amounted to a recognition of such withdrawal. In our opinion these contentions are not well founded. The record shows that prior to the commencement of the first trial, namely, on June 17, 1919, the defendant entered a plea of not guilty to the information. By such plea an issue of fact was framed, which was tried at that time. On appeal to this court the conviction was set aside because of certain errors in the conduct of that trial, and the cause was remanded for a new trial in order that the defendant might be afforded a fair trial. The issue raised by the plea of not guilty was not disposed of. The new trial was ordered that that issue might be determined in the manner provided by our laws. Under our statute the failure of an information to state facts sufficient to constitute a public offense is not a ground for setting aside the information upon motion (section 10728, C. L. 1913), although it is a ground for demurrer (section 10737, C. L. 1913). Both a motion to set aside an information and a demurrer must be in writing, and subscribed by the defendant or his attorney (sections 10729, 10738, C. L. 1913). A motion to set aside an information lies only for the grounds specified in the statute (section 10728, C. L. 1913), “and said motion must be made before the defendant demurs or pleads, or the objection is waived” (section 10729, C. L. 1913). The trial court may, in its discretion, permit a plea to be withdrawn and a different plea or a demurrer to be interposed (section 10749, C. L. 1913).

We are entirely satisfied that the trial court was correct in proceeding on the theory that the plea of not guilty interposed before the commencement of the first trial, and the issue thereby framed, remained until the defendant asked that the plea be withdrawn. And, in view of the statutory provisions above referred to, we do not believe it can be said that the defendant ever withdrew his plea of not guilty and that the case was tried without being at issue. The fact that the trial court ruled upon the motion to set aside the information cannot, we think, be construed as permission by the court that the plea of not guilty be withdrawn; nor can the making of such motion be deemed a withdrawal by the defendant of his plea of not guilty. The motion having been made, it was, of course, incumbent upon the trial judge to make some ruling. This he did. He denied the motion and that ruling was, in our opinion, a correct one.

In no event can it be said that any substantial right of the defendant was affected adversely by not affording him an opportunity to plead anew before the second trial commenced. That trial proceeded and was had upon the theory that the plea of not guilty, which had originally been entered, remained in full force and effect. The defendant, upon the witness stand, positively denied the charge against him, and in his instructions to the jury the trial judge said:

“When arraigned upon that information the defendant pleaded not guilty to that charge, and that puts in issue or denies every material allegation contained in the information and makes it necessary for the state to prove the defendant guilty to your satisfaction, beyond a reasonable doubt, before you would be justified in returning a verdict of guilty against this defendant.”

Under our laws, it is the duty of this court, after hearing an appeal in a criminal action, to “give judgment without regard to technical errors or defects or exceptions, which do not affect the substantial rights of the parties” (section 11013, C. L. 1913).

[3] The third assignment of error is that the trial court erred in denying defendant's motion for a new trial on the ground of newly discovered evidence. When this case came on for trial the state offered as a witness one Mrs. Manning, who did not testify upon the first trial. Upon this trial of the action, the defendant was represented by counsel who did not appear for him upon the former trial, although he appeared for him on the appeal to this court. Mrs. Manning testified that she came to the home of the complaining witness on one occasion at or about the time that the crime charged against the defendant is alleged to have been committed; that she knocked on the door, but that no one responded; that she thereupon entered the house, and on opening the door into the kitchen saw the plaintiff and the complaining witness in a compromising position on the floor. Mrs. Manning was the only witness claiming to have witnessed the commission of the crime. In support of the motion for a new trial the defendant submitted certain affidavits tending to show that the witness Manning had made certain statements wholly inconsistent with or contradictory to the testimony which she gave upon the trial of the action. In denying the motion for a new trial the trial court filed a memorandum opinion wherein he stated:

“While I am not satisfied with all of the evidence in this case, there is evidence in the case which, if believed, is amply sufficient to sustain the verdict. As I understand it, the credit to be given a witness, and the weight of the evidence, is for the jury, and the court is not justified in setting aside the verdict simply because he could not have arrived at the same conclusion as did the jury.”

In the certificate of probable cause made by the trial judge upon this appeal he said:

“There is probable cause for an appeal on the part of the defendant. Mrs. Manning's name did not appear on the information, and the first information that the defendant had was when the case was called for trial that the state would call Mrs. Manning and, the attorneys for the defendant promptly objected to Mrs. Manning testifying, for the reason that her name was not on the information and on...