State v. Tough

• Citation: 96 N.W. 1025,12 N.D. 425
• Decision Date: 04 November 1903
• Docket Number: 6731
• Court: United States State Supreme Court of North Dakota

96 N.W. 1025

12 N.D. 425

THE STATE OF NORTH DAKOTA v. WILLIAM B. TOUGH

No. 6731

Supreme Court of North Dakota

November 4, 1903

Appeal from District Court, Pierce county; Cowan, J.

William B. Tough was convicted of entering a railroad car with intent to steal, and appeals.

Reversed.

Judgment reversed, and a new trial ordered.

George A. Bangs, for appellant.

At common law a second indictment might be returned, but the practice cannot be sustained in this state. The Code of Criminal Procedure governs all criminal actions. Under our code provisions, it is disclosed that a person charged with crimes cannot be harrassed with repeated indictments. Under section 8033 Rev. Codes, if the grand jury returns no indictment, the case is dismissed; under section 8033, the dismissal does not preclude the court from submitting repeatedly to the grand jury; but without such direction on the part of the court, it cannot be resubmitted. Under section 8081, defendant must either move to set aside indictment, plead thereto, or demur. This he must do to each indictment, or the officers of the court must ignore or refuse to obey the plain provisions of law. By section 8086 if the motion to set aside an indictment is granted, the defendant must be discharged, "unless the court directs that the case be submitted to the same or another grand jury." Under section 8095, if demurrer is sustained such action is a bar to another unless the court directs that the case be resubmitted to the same, or another grand jury.

There is no room for the returning of a second indictment unless the court resubmit the same to the same or another grand jury. See People v. Clement, 5 N.Y. Cr. Rep. 288.

The court erred in sustaining objections to questions tending to elicit proof of the course of dealings between Lockwood and defendant, respecting the purchase and delivery of coal from cars on the track. Robinson v. State, 53 Md. 151, 36 Am. Rep. 399; State v. Shores, 31 W.Va. 491, 7 S.E 413, 13 Am. St. Rep. 875; Charles v. State, 36 Fla. 691, 18 So. 369; State v. Carpenter, 1 Hous. Cr. Cases, 367; Abbott's Trial Brief, criminal cases, section 392, 608, 609, 610, 611; State v. Waltz, 52 Iowa 227, 2 N.W. 1102.

The defendant cannot be indicted or informed against under section 7406, Rev. Codes, subdivision 2, defining burglary in the third degree, and convicted under section 7411, for entering with intent to commit larceny. State v. Johnson, 3 N.D. 150, 54 N.W. 547; State v. Marcks, 3 N.D. 532, 58 N.W. 25; State v. Maloney, 7 N.D. 119, 72 N.W. 927; State v. Young, 9 N.D. 353, 82 N.W. 420; State v. Belyea, 9 N.D. 353, 83 N.W. 1.

There was error in the refusal of the court to give the instruction set forth in the opinion, and requested by defendant. The points embodied in the request were proper and were not covered in the general charge. Walton v. State, 29 Tex.App. 163, 15 S.W. 646; Castanda v. State, 11 Tex.App. 390; State v. Yohe, 53 N.W. 1088.

B. L. Shuman, State's Attorney, for Pierce county, for respondent.

The grand jury may withdraw an indictment from the files, for amendment without a re-examination. State v. Hasledahl, 3 N.D. 36, 53 N.W. 430. One indictment may be substituted for another, for the purpose of formal amendments, where rights of accused are not interfered with. State v. Stebbins, 78 Am. Dec. 223, 10 Am. & Eng. Enc. of Law, 538, 339, 340 (1st Ed.) Rev. Codes 8048.

Former indictment pending for same offense, no ground for abatement. State v. Security Bank of Clark, 2 S.D. 538, 51 N.W. 337. Statements made in one's own interest are self-serving and not a part of the res gestae, and are not admissible as evidence. 4 Am. & Eng. Enc. of Law (1st Ed.) 862; Smith v. State, 85 N.W. 49.

A party cannot state his own motives directly, for such testimony cannot be directly contradicted. Jones on Evidence, section 167, 351.

Where there is evidence on which instruction as to lower grades of offense can be based, court should give them. State v. Young, 99 Mo. 666; Territory v. Romero, 2 N. M. 474; People v. Palmer, 96 Mich. 580, 55 N.W. 994; State v. Partlow, 90 Mo. 608; Blashfield's Instruction to Juries, section 192. Defendant is not prejudiced by instructions as to lower grades, when he has not asked that they be confined to the crime charged. State v. Keele, 105 Mo. 38; Blashfield's Instructions to Juries, Sec. 192; State v. Johnson, 8 Iowa 525. Jury may find defendant guilty of an offense included in the one charged, Rev. Codes 8244; People v. Odell, 1 Dak. 197, 46 N.W. 601; Brantly v. State, 61 P. 139; State v. Maloney, 7 N.D. 119, 72 N.W. 92.

OPINION

COCHRANE, J.

Defendant was indicted for the crime of burglary in the third degree, under section 7406, Rev. Codes 1899. When arraigned, he moved to set aside the indictment, setting forth as grounds therefor that (a) the grand jury which returned the indictment was not legally called, in that the district judge, in ordering the jury drawn, did not do so upon a finding that the same was necessary for the due enforcement of the laws of the state; (b) because at the time of the finding of the indictment another indictment against defendant, for the same offense, returned by the same grand jury, was outstanding and undisposed of. Error is assigned upon the order overruling this motion.

A grand jury can only be drawn and summoned in this state when directed by the district judge by an order in writing, signed by him, and filed with the clerk. That a judge deems the attendance of a grand jury necessary at a term of court is sufficiently evidenced by the order directing it to be called, without any recital of his finding. Subdivisions 2 and 3 of section 7989, Rev. Codes 1899, furnish a method of securing an order for the calling of a grand jury when the judge might not otherwise order one.

The second ground of defendant's motion to set aside the indictment proceeds upon the assumption that the grand jury exhausted its authority as to the burglary charge against defendant when the first indictment was returned into court, and that it could not return a second indictment until the first had been set aside by the court, either upon motion or on demurrer, and the case ordered resubmitted by the court. This objection to the indictment is not one of those specified in the statute which may be made by motion to set the indictment aside. Section 8082, Rev. Codes 1899, provides that an indictment must be set aside by the court in which the defendant is arraigned upon his motion: "(1) When it is not found, indorsed and presented or filed as prescribed by this Code. (2) When the names of the witnesses examined before the grand jury are not inserted at the end of the indictment or otherwise exhibited thereon. (3) When a person is permitted to be present during the session of the grand jury, while the charges embraced in the indictment are under consideration. (4) When the defendant had not been held to answer before the finding of the indictment, on any ground which would have been good ground for challenge, either to the panel or to any individual grand juror." The courts of several states where there are similar statutory provisions hold that the enumeration in the statute of the grounds upon which an indictment will be set aside excludes all others. State v. Security Bank, 2 S.D. 538, 51 N.W. 337; People v. Southwell, 46 Cal. 141, People v. Schmidt, 64 Cal. 260, 30 P. 814; State v. Whitney, 7 Ore. 386; State v. Justus, 8 P. 337, 50 Am. Rep. 470; State v. Baughman (Iowa) 82 N.W. 452; People v. Petrea, 92 N.Y. 128. The motion was properly overruled.

Error is assigned upon the fact that P. J. McClory was permitted to participate in the trial of the case as assistant to the state's attorney, over defendant's objection. The reason assigned in his objection by counsel for appellant was "that the cause, if any existed, for the appointment of Mr. McClory as special prosecutor in this case, has passed over; that the duly elected, qualified, and acting state's attorney of the county of Pierce is now able to take charge of his duties, and has been present in this courtroom, and assisted in the trial of the case up to this time." The statute (chapter 178, p. 234, Laws 1901) upon which counsel relies provides that the state's attorney as public prosecutor, must attend the district court, and conduct, on behalf of the state, all prosecutions for public offenses. It declares the intent of the act to make the attorney general, his assistants, and the state's attorney the only public prosecutors in all cases, civil and criminal, wherein the state is a party, and that they only shall be authorized to perform the duties set forth in the act, except as in the act provided. When the state's attorney refuses or neglects to draw indictments and informations (or to perform other enumerated acts, of no materiality to the point under consideration), the judge of the district court may, by order entered on the minutes of the court, appoint a suitable attorney at law, who shall be thereupon vested with all the powers of the state's attorney for that action. The act also provides "that nothing therein shall prevent the county commissioners of any county, in cases of public importance, with the advice and consent of the state's attorney, employing such additional counsel as may be deemed advisable to assist the state's attorney." It does not appear how or in what manner Mr. McClory's services were secured. The language of counsel's objection would indicate that an order of court was made appointing Mr. McClory to take charge of the prosecution. It was presumptively made upon the statutory ground. If the order was made without legal authority, or if no order was in fact made, the error, if any, should be made affirmatively...