State v. Tucker, Cr. No. 3.

• Decision Date: 22 April 1929
• Docket Number: Cr. No. 3.
• Citation: 224 N.W. 878,58 N.D. 82
• Parties: STATE v. TUCKER.
• Court: North Dakota Supreme Court

58 N.D. 82

224 N.W. 878

STATE

v.TUCKER.

Cr. No. 3.

Supreme Court of North Dakota.

Jan. 2, 1929.

Rehearing Denied April 22, 1929.

Syllabus by the Court.

The defendant was indicted in La Moure county for murder. He secured a change of judge and a change of place of trial to Cass county. Thereafter, while the action was pending in the district court of Cass county, he was again indicted by a grand jury in La Moure county for the same offense. Upon an ex parte application of the prosecuting attorneys the action in Cass county on the first indictment was dismissed, and the defendant was brought to trial in La Moure county upon the second indictment.

Where a defendant has not been placed in jeopardy under an indictment for a criminal offense, he may be reindicted for the same offense.

Where, under the statute, chapter 215, Laws of 1927, upon the application of the defendant, the place of trial has been changed to another county, such change will not preclude a second indictment in the county where the offense was committed.

Where, after a defendant has been arraigned on the second indictment, there was ample time, prior to the convening of the term of court at which the defendant might be tried under this indictment, to have permitted him to have obtained a change of place of trial thereunder, but he has not done so, he is not deprived of any substantial right, as it will not be assumed that his application, if made, would not have been properly acted upon and determined.

Under the statute, chapter 215, Laws of 1927, a change of place of trial does not change the venue as to the offense itself, and, under section 11179, Compiled Laws of 1913, the procedure, practice, and pleadings that are not specially provided for are to be in accordance with the common law.

It is not essential to a valid dismissal of a criminal action that the defendant shall be notified or that he shall be present.

An instruction on the subject of reputation evidence should be given in light of the rule that special emphasis should not be placed upon particular testimony or parts of the evidence, and an instruction, which calls attention to reputation evidence, states the legal basis for its reception, and charges the jury to consider all of the evidence and to give the defendant the benefit of any reasonable doubt, is held to be an adequate instruction, although it does not state that a reasonable doubt may arise upon such evidence alone.

The instruction of the court on the subject of circumstantial evidence is examined and approved.

Though the statute, section 9476, Compiled Laws of 1913, provides that the jury finding a person guilty of murder shall determine by their verdict whether it is murder in the first degree or murder in the second degree, and fix the punishment, where the evidence in the case shows that the elements of murder in the first degree were present, and there is no evidence of murder in the second degree, it was not error, especially in the absence of a request for an instruction, covering second-degree murder, for the court to instruct the jury that they must find the defendant guilty of murder in the first degree or acquit him.

Where a crime defined by statute may be committed in a number of different ways, it is proper, in instructing the jury, to define the crime as committed, if done in the manner shown by the evidence in the case, disregarding the remainder of the statutory definition which can have no application under the evidence.

Where, upon cross-examination, a witness is asked concerning statements to a third party which were not covered in his direct examination, the cross-examiner may not impeach the witness who denied the making of such statement by proving the contrary.

Where a witness is asked as to collateral crimes for the purpose of affecting his credibility, his answers are conclusive on the party asking. State v. Kent, 5 N. D. 516-558, 67 N. W. 1052, 35 L. R. A. 518.

The test as to materiality for the purpose of applying the rule of impeachment is: Could the fact as to which error is predicated have been shown in evidence for any purpose independently of the contradiction?

Demonstrative evidence may be resorted to where it will assist in conveying more accurate impressions to the jury concerning facts in issue.

The circumstantial evidence, relied upon to prove that the defendant committed the crime in question, is examined, and held to be sufficient in law to support the verdict.

Appeal from District Court, La Moure County; Charles E. Wolfe, Judge.

Francis Tucker was convicted of murder, and he appeals. Affirmed.

See, also, 222 N. W. 651.

M. A. Hildreth, of Fargo, and F. S. Thomas, of Lisbon, for appellant.

George F. Shafer, Atty. Gen., William C. Green, Sp. Asst. Atty. Gen., and E. M. Warren, State's Atty., of La Moure, for the State.

BIRDZELL, J.

Francis Tucker was tried in the district court of La Moure county for the murder of one Hans C. Bjone, and was convicted. He appeals to this court from the judgment of conviction and from an order denying his motion for a new trial.

Hans C. Bjone during his lifetime was the cashier of the Farmers' & Merchants' Bank of Verona. He was in sole charge of the bank, except for such supervision as was exercised by two uncles, who lived in the vicinity of Verona and owned the controlling interest in the bank. He was a bachelor, and had a living room in the bank building where he slept and sometimes cooked for himself. On the morning of March 1, 1927, the bank did not open as usual. After this fact had been noted by several, one of the townsmen upon trying the front door discovered that it was not locked. Thereupon he forced the door open and found that one nail had been driven in the frame and one below the door into the threshold to hold it shut. After an examination of the banking room and of the living room, it was ascertained that the vault door was locked. This was soon opened by a former employee of the bank, who remembered the combination, and just inside the vault was found the body of Hans C. Bjone. There were five bullet wounds in the head. Upon a later examination it developed that the bullets were not all of the same caliber. Three bullets were later extracted from the head of the deceased. Two were .22 caliber and one .25 caliber. In checking up the cash assets of the bank it was discovered that some $3,600 had been taken between February 28th and March 1st. The back door of the building was equipped with a Yale lock which locked automatically when the door was closed. There was a storm door outside the rear door, which was kept closed by a hook and fastened from the inside. This storm door was open on the morning of March 1st. These main facts, which were patent upon a casual examination, indicated that some one actuated by the motive of robbery had shot the cashier, locked his body in the vault, nailed the front door shut, taken the cash, and escaped through the rear door. The evidence to connect the defendant with the crime is circumstantial, and will require a more adequate statement in that portion of this opinion which will deal with its sufficiency.

[1][2] The defendant was indicted by a grand jury in La Moure county on May 6, 1927. He later appeared and filed an affidavit of prejudice against the court and against the county. The presiding judge, Hon. George M. McKenna, thereafter, on June 14, 1927, made an order removing the action for further proceedings and for trial to Cass county, to which county the records and proceedings were transmitted. On September 28, 1927, the defendant was again indicted by a grand jury in La Moure county for the same crime as that charged in the indictment of May 6th. After the return of the second indictment an ex parte application, dated October 1, 1927, was made by the attorneys for the prosecution for an order of dismissal of the indictment of May 6th, and it was accordingly dismissed by an order signed by the district judge presiding in Cass county. The order of dismissal was signed October 6, 1927, and recites as reasons that a subsequent indictment had been returned charging the defendant in the first indictment with the same crime as that charged therein, and that the state had elected to proceed upon the second indictment, that returned on September 28th. The record shows some very questionable proceedings with reference to the impaneling of the first grand jury, which go to the validity of the indictment. It therefore suggests the existence of substantial reasons for procuring a second indictment. The defendant was never required to plead to the first indictment.

The record is voluminous. There are 76 assignments of error and 23 additional assignments on the instructions of the court to the jury in addition to the specifications of the insufficiency of the evidence. The first 7 assignments are grouped for argument by the appellant under the head of jurisdiction of the district court of La Moure county to proceed with the trial of the defendant under the second indictment. The power of the district court of Cass county to dismiss the prosecution under the first indictment is also questioned. The proceedings disclose the theory of the prosecution to be that there may be more than one indictment against a person for the same offense, and that a prior indictment may be dismissed and a defendant tried under a subsequent indictment, regardless of any proceedings that may have been taken under a prior indictment to secure a change of the place of trial; whereas, it is the theory of the defendant and appellant that, after proceedings are taken on a prior indictment to secure a change of judge and a change of place of trial in a criminal case, there can be no subsequent proceedings looking toward a prosecution for the same offense in the county where the indictment was procured, particularly where a second indictment is procured in circumstances that might deprive the defendant of the benefit...