State v. Thompson

• Decision Date: 03 January 1938
• Docket Number: Cr. 141
• Citation: 277 N.W. 1,68 N.D. 98
• Court: North Dakota Supreme Court

277 N.W. 1

68 N.D. 98

STATE OF NORTH DAKOTA, Respondent, v. WILLIAM THOMPSON, Appellant

No. Cr. 141

Supreme Court of North Dakota

January 3, 1938

Rehearing Denied January 15, 1938.

Syllabus by the Court.

1. Error cannot be predicated upon the denial of a defendant's motion to dismiss a criminal case at the close of the state's testimony.

2. The defendant specifies as error the denial of a motion for a continuance. The record is examined, and it is held that no motion for a continuance was made.

3. It is not error for the trial court, in the trial of a grand larceny case, to omit to instruct the jury on petit larceny when the defendant requested no such instruction.

4. The showing made by the defendant on a motion for a new trial upon the ground of newly discovered evidence is examined, and it is held that the trial court did not abuse the judicial discretion vested in him by denying such motion.

5. Where a motion for a new trial is made in a criminal case by the defendant, he must give the trial court an opportunity to pass upon all the errors which he claims to be grounds for a new trial. He cannot urge in the appellate court as grounds for a new trial errors which he failed to bring to the attention of the trial court.

Appeal from District Court, McKenzie County; John C. Lowe, Judge.

William Thompson was convicted of the crime of grand larceny, and he appeals.

Affirmed.

E C. Rudolph and Simpson, Mackoff & Kellogg (on appeal), for appellant.

To constitute larceny the first essential is that the thing which is the subject of the crime should be taken from the possession of the owner into the possession of the thief, and be carried away by him. 36 C.J. 747.

If, after the taking, accused keeps the property openly, claiming it as his own, making no effort to conceal his possession of it or the manner of his acquiring it, a strong presumption of good faith is raised. 36 C.J. 914.

The fourth and last essential of larceny is that the property of another which is taken and carried away without his consent should be taken with a felonious intent. 36 C.J. 761.

If one, in good faith, takes the property of another, believing it to be legally his own, or that he has a legal right to its possession, he is not guilty of larceny, although his claim is based on a misconception of the law or of his rights under it. 36 C.J. 764; State v. Ehr, 64 N.D. 309, 252 N.W. 60.

The law abolishing the distinction between an accessory before the fact and a principal is in derogation of common law. 1 R.C.L. 151; 16 C.J. 121.

The crimes of the principal and of the accessory are separate and distinct. 16 C.J. 119.

There are several things that must concur in order to justify the conviction of one as an accessory before the fact: (1) That he advised and agreed, or urged the parties or in some way aided them, to commit the offense; (2) that he was not present when the offense was committed; (3) that the principal committed the crime. 16 C.J. 134.

Even where the conviction of the principal need not be shown on the trial of the accessory, the guilt of the principal must be proved beyond a reasonable doubt to convict the accessory. 16 C.J. 144.

An indictment for the crime of accessory before the fact to the commission of a felony cannot be sustained unless the guilt of the principal felon be established as well as the guilt of the defendant as accessory. 1 R.C.L. 153.

Where the defendant's explanation of his possession is both corroborated and contradicted, a conviction cannot be sustained. Tarin v. State, 25 Tex.App. 360, 8 S.W. 475.

Although the possession of stolen property, unexplained, is evidence of guilt, yet where a reasonable explanation is given, and there is no conflict of evidence in regard thereto, and the witness is not inpeached, the jury cannot arbitrarily ignore such evidence. State v. Seymour, 7 Idaho, 257, 61 P. 1033.

Where circumstantial evidence is relied on, a few facts, or a multitude of facts proven, all consistent with the supposition of guilt, are not enough to warrant a verdict of guilty. 8 R.C.L. 225.

Where felonious intent is inferable alone from circumstances, they must be such as to exclude every reasonable hypothesis on that issue except the guilt of the accused. West v. State, 119 Neb. 633, 230 N.W. 504; State v. Guffy, 50 S.D. 548, 210 N.W. 980; State v. Peifer, 49 S.D. 535, 207 N.W. 547; State v. McKenzie, 67 N.D. 443, 273 N.W. 1.

The judge presiding at the trial of an action should at all times maintain an impartial attitude in his conduct and demeanor, and a status of neutrality between the contending parties. 64 C.J. 102; State v. Philpot, 97 Iowa 365, 66 N.W. 730; Cooper v. State, 97 Neb. 461, 234 N.W. 406; Bourne v. State, 116 Neb. 141, 216 N.W. 173; Casey v. State, 20 Neb. 138, 29 N.W. 264; Lowe v. State, 110 Neb. 325, 193 N.W. 707; State v. Peirce, 178 Iowa 417, 159 N.W. 1050; State v. Ferguson, 48 S.D. 346, 204 N.W. 652; People v. Cavanaugh, 246 Mich. 680, 225 N.W. 501; Carrico v. State, 109 Neb. 177, 190 N.W. 576; State v. Hazlett, 14 N.D. 490, 105 N.W. 617; State v. Fordham, 13 N.D. 494, 101 N.W. 888.

P. O. Sathre, Attorney General, Milton K. Higgins, Assistant Attorney General, and W. A. Jacobsen, for respondent.

Where there is a motion for a new trial, the grounds for appeal must be presented to the trial court therein or they are waived. State v. Glass, 29 N.D. 620, 151 N.W. 229; State v. Grams, 65 N.D. 400, 259 N.W. 86; State v. Krueger, 57 N.D. 636, 223 N.W. 583; State v. Hagan, 54 N.D. 136, 208 N.W. 947.

An amendment to a motion for a new trial, setting up new ground, is a motion for a new trial and cannot be made after the time limited by statute for motion for a new trial has expired. Nichols v. Flannigan, 185 Mich. 654, 152 N.W. 482; McCoy v. State, 110 Neb. 360, 193 N.W. 716; Turley v. People, 73 Colo. 518, 216 P. 536; Territory v. Witt, 27 Hawai'i 177; State v. Midkiff, 286 S.W. 20; State v. LaBreyere (Mo.) 64 S.W.2d 117; State v. Harbour, 27 S.D. 42, 129 N.W. 565; 16 C.J. 1217.

An application for a new trial on criminal matters should state particularly the rulings on evidence on which error is based, and that a general allegation that the rulings were wrong is not sufficient. 16 C.J. 1218; State v. Ellis, 290 Mo. 219, 234 S.W. 845; State v. Noble, 96 W.Va. 432, 123 S.E. 237.

A failure to charge on a lesser and included offense is not error, in the absence of a specific request to so charge. State v. Martin, 54 N.D. 840, 211 N.W. 585; State v. Murbach, 55 N.D. 846, 215 N.W. 552; State v. Kingen, 58 N.D. 327, 226 N.W. 505.

Morris, J. Christianson, Ch. J., and Burr and Nuessle, JJ., concur.

OPINION

MORRIS

The defendant was convicted in the District Court of McKenzie County of the crime of grand larceny. The information charged the theft on or about April 30, 1933, of four horses, namely, 1 sorrel gelding three years old; 1 grey mare three years old; 1 grey gelding four years old; 1 black gelding three years old; the property of Hugh Stevenson. The evidence presented to the jury the following facts: About the middle of March, Clynord Thompson, a son of the defendant, came on horseback to the farm of the Gravos family, which was about six miles from the Thompson home. He arrived in the evening and stayed all night. During the course of the evening he asked that someone go riding with him as he was looking for some horses. The next morning Clynord Thompson and Olaf Gravos started out on horseback. Clynord said he was looking for two of his own horses and two belonging to his father. Olaf Gravos was told by his father to look for two horses which the Gravoses had wintered for one Browning. The two young men first found the Browning horses, then rode on and found four more which Clynord said they should take. All six horses were rounded up and driven back to the Gravos farm, along with some of the Gravos work horses. They arrived at the Gravos place shortly before noon. After having dinner they drove all six horses to the Thompson farm. They were accompanied by Lafe Gravos, a brother of Olaf. They noticed no brands on the horses claimed by Thompson. William Thompson, the defendant, was not home when the horses were brought to his place. Several days later the defendant and his hired man drove the horses into a corral where they looked them over for brands. Olaf and Lafe Gravos were present. At the instruction of the defendant one of the horses was roped and thrown and the defendant and his hired man examined it for brands, and the defendant stated that there were no brands. The Browning horses were afterwards taken back to the Gravos place upon the orders of Henry Gravos. He testifies concerning his conversation with the defendant as follows:

"I told him to come out I liked to talk to him. I told him the boys brought up, or weren't belonging to Mr. Thompson, there was one team that belonged to Mr. Browning and them other four, them belongs to Mr. Stevenson on the river, I say, and Mr. Thompson say 'What in the hell do you know about slicks,' he say. I say, 'Mr. Thompson, are you coming to draw my family into horse thieving? I never been that in this country and I never raised my children to be that'. I said, 'The first time you try to ship them horses out I am going to Schafer and get the sheriff down there.' I told him, 'We have been friends all of my life. If you do this against me, I'll call the sheriff, for I can tell you them are the Stevenson horses,' I say. He was mad. Thompson say, 'Send the boys over and we will see if they are slicks.' I say, 'I don't care if they are slicks or not.'"

A slick, in the vernacular of the range, is an unbranded horse.

The defendant testified that he sold the horses described in the information to one Wake...