State v. Uhler

• Citation: 156 N.W. 220,32 N.D. 483
• Decision Date: 05 January 1916
• Docket Number: 1915
• Court: North Dakota Supreme Court

156 N.W. 220

32 N.D. 483

STATE OF NORTH DAKOTA v. ANDY UHLER

No. 1915

Supreme Court of North Dakota

January 5, 1916

An appeal from the District Court of Grand Forks County, Cooley J., adjudging defendant guilty of robbery.

Affirmed.

J. B Wineman, for appellant.

A defendant on trial for crime has the right to have his witnesses present in court, and to the process of the court to procure them. Comp. Laws 1913, § 10787; N.D. Const § 13, art 1.

A defendant is deprived of this right in its fullness and completeness if the testimony of a witness is brought before the court and jury in any other form, to which he does not give assent. And, where a witness is absent, and continuance is requested upon proper showing, a stipulation by the state as to the testimony of such absent witness is insufficient to bring to defendant the full benefits of his constitutional and statutory rights. State v. Berkley, 92 Mo. 41, 4 S.W. 24; Pace v. Com. 89 Ky. 207, 12 S.W. 271; State v. Wilcox, 21 S.D. 532, 114 N.W. 688; 4 Enc. Pl. & Pr. 865.

If the state, in such case, is willing to admit the truth of the statements set out in the affidavit for continuance, then the application may be denied. Madison v. State, 6 Okla Crim. Rep. 356, 118 P. 617, Ann. Cas. 1913C, 484.

If the state does not concede the truth of the testimony which an absent witness would give, the trial court has no power to refuse the defendant's motion for a continuance, when the witness is within the jurisdiction of the court. State v Twiggs, 60 N. C. (1 Winst. L.) 142; Hyde v. State, 16 Tex. 445, 67 Am. Dec. 630; De Warren v. State, 29 Tex. 464; Skaro v. State, 43 Tex. 88; Hackett v. State, 13 Tex.App. 406; McGrew v. State, 31 Tex. Crim. Rep. 339, 20 S.W. 740; Phipps v. State, 36 Tex. Crim. Rep. 216, 36 S.W. 753; Jackson v. State, 48 Tex. Crim. Rep. 648, 90 S.W. 34; Jenkins v. State, 49 Tex. Crim. Rep. 457, 122 Am. St. Rep. 812, 93 S.W. 726; Purvis v. State, 52 Tex. Crim. Rep. 316, 106 S.W. 355; Davis v. State, 52 Tex. Crim. Rep. 332, 107 S.W. 855; Westerman v. State, 53 Tex. Crim. Rep. 109, 111 S.W. 655; Wheeler v. State, 61 Tex. Crim. Rep. 527, 136 S.W. 68; Francis v. State, Tex. Crim. Rep. , 55 S.W. 489, 13 Am. Crim. Rep. 425; Gardner v. State, Tex. Crim. Rep. , 59 S.W. 1115; Roberst v. State, 65 Tex. Crim. Rep. 62, 143 S.W. 614; McMillan v. State, 65 Tex. Crim. Rep. 319, 143 S.W. 1174; Burford v. State, Tex. Crim. Rep. , 151 S.W. 538; People v. Vermilyea, 7 Cow. 369; People v. Diaz, 6 Cal. 248; People v. Fong Chung, 5 Cal.App. 587, 91 P. 105; State v. Wilcox, 21 S.D. 532, 114 N.W. 687; Watson v. State, 118 Ga. 66, 44 S.E. 803; Pannell v. State, 29 Ga. 681; Hood v. State, 93 Ga. 168, 18 S.E. 553; Wheeler v. State, 8 Ind. 117; McLaughlin v. State, 8 Ind. 281; Carmon v. State, 18 Ind. 450; Burchfield v. State, 82 Ind. 580; Madison v. State, Ann. Cas. 1913C, 493 note.

Where defendant is deprived of the presence of his witnesses in court and testifying, the evidence which they would give, as conceded by the state to avoid continuance, must be received free from impeachment. Conley v. People, 80 Ill. 236, 2 Am. Crim. Rep. 445.

Where there is error in overruling a motion for continuance, all proceedings in connection with the trial following are nugatory. Johnson v. State, Ga.App. , 85 S.E. 205; Morgan v. State, 13 Ga.App. 434, 79 S.E. 247; Britt v. State, 13 Ga.App. 698, 79 S.E. 859; Hamilton v. State, 3 Ind. 553; McLaughlin v. State, 8 Ind. 281; Miller v. State, 9 Ind. 340; Wassels v. State, 26 Ind. 30; State v. Dawson, 90 Mo. 149, 1 S.W. 827; State v. Neiderer, 94 Mo. 79, 6 S.W. 708; State v. Warden, 94 Mo. 648, 8 S.W. 233; State v. Dyke, 96 Mo. 298, 9 S.W. 925; State v. Loe, 98 Mo. 609, 12 S.W. 254; State v. Abshire, 47 La.Ann. 542, 17 So. 141, 10 Am. Crim. Rep. 461.

Where a juror has formed an unqualified opinion, and has expressed it freely, and where his attitude in answering questions indicates that he believes it is necessary for the defendant to prove his innocence, or that he would be unwilling to be governed by the evidence and instructions, he is disqualified to act as a juror. People v. Cottle, 6 Cal. 227; People v. Williams, 6 Cal. 206; State v. Roberts, 27 Nev. 449, 77 P. 598; State v. Fujita, 20 N.D. 555, 129 N.W. 360, Ann. Cas. 1913A, 159; State v. Barker, 46 La.Ann. 798, 15 So. 98; People v. Mahoney, 73 Hun, 601, 26 N.Y.S. 257; State v. Flint, 60 Vt. 304, 14 A. 178; 24 Cyc. 309.

It is the duty of the state's attorney to indorse, on the information, the names of all the witnesses known to him at the time of filing the information, and if other witnesses are called, and objection is made, it should clearly appear that the state's attorney did not know of them, before they should be permitted to give their testimony. State v. Kent (State v. Pancoast) 5 N.D. 516, 35 L. R.A. 518, 67 N.W. 1052.

Questions which are asked of a defendant on trial for crime, which have for their apparent sole purpose the degradation of defendant and his relatives, before the jury, are irrelevant, and highly improper. State v. Apley, 25 N.D. 298, 48 L.R.A.(N.S.) 273, 141 N.W. 740; State v. Gleim, 17 Mont. 17, 31 L.R.A. 294, 52 Am. St. Rep. 655, 41 P. 998, 10 Am. Crim. Rep. 46; People v. Un Dong, 106 Cal. 83, 39 P. 12; State v. Carson, 66 Me. 116, 2 Am. Crim. Rep. 58.

The state has no right, in rebuttal or otherwise, to offer testimony to impeach the conceded testimony of defendant's absent witness. Brown v. State, 142 Ala. 287, 38 So. 268; State v. Shannehan, 22 Iowa 435; Davis v. State, Tex. Crim. Rep. , 152 S.W. 1094; Rhodes v. Com. 151 Ky. 534, 152 S.W. 549; State v. Abshire, 47 La.Ann. 542, 17 So. 141, 10 Am. Crim. Rep. 456.

It was error for the court to refuse the request of defendant that a witness within its jurisdiction, who had been served with subpoena as a witness for defendant, be brought to court. 40 Cyc. 2157.

To constitute the crime of robbery it is essential that the taking be wrongful, unlawful, or felonious. A taking of property accompanied by an assault, which assault is described by use of the above terms, is not necessarily robbery. State v. Fordham, 13 N.D. 494, 101 N.W. 888; State v. Rechnitz, 20 Mont. 488, 52 P. 264; State v. Fulford, 124 N.C. 798, 32 S.E. 377; State v. McCaskey, 104 Mo. 644, 16 S.W. 511; Sledge v. State, 99 Ga. 684, 26 S.E. 756; McDow v. State, 113 Ga. 699, 39 S.E. 295; State v. Oliver, 20 Mont. 318, 50 P. 1018.

The court failed to specifically instruct as to all the elements of robbery; neither does the information sufficiently charge the crime of robbery. State v. Johnson, 26 Mont. 9, 66 P. 290, 14 Am. Crim. Rep. 619; State v. Smith, 174 Mo. 586, 74 S.W. 624, 14 Am. Crim. Rep. 616; State v. Magill, 19 N.D. 131, 22 L.R.A.(N.S.) 666, 122 N.W. 330; Alston v. State, 109 Ala. 51, 20 So. 81; 12 Cyc. 612; Goldsberry v. State, 66 Neb. 312, 92 N.W. 906; Lindley v. State, 8 Tex.App. 445; State v. Hakon, 21 N.D. 133, 129 N.W. 234.

Where court officers, sheriffs, and policemen testify for the state, the defendant is entitled to an instruction from the court to the jury, that greater care should be exercised in weighing the testimony of such witnesses than in case of witnesses who are wholly disinterested. Blashfield, Instructions to Juries, p. 225; 2 Sackett, Instructions to Juries, § 2768; 40 Cyc. 2655; Kastner v. State, 58 Neb. 767, 79 N.W. 713; Sandage v. State, 61 Neb. 240, 87 Am. St. Rep. 457, 85 N.W. 35; State v. Miller, 9 Houst. (Del.) 564, 32 A. 137.

"An indictment for robbery under the statute should charge the offense in the language of the statute, or, in words equivalent, provided all the necessary elements of the crime are expressed in the statute." Clark, Crim. Law, § 379; State v. Fulford, 124 N.C. 798, 32 S.E. 377; State v. McCaskey, 104 Mo. 644, 16 S.W. 511; Sledge v. State, 99 Ga. 684, 26 S.E. 756; McDow v. State, 113 Ga. 699, 39 S.E. 295; State v. Oliver, 20 Mont. 318, 50 P. 1018; 18 Enc. Pl. & Pr. 1217; 22 Cyc. 332; People v. Colburn, 105 Cal. 648, 38 P. 1105; People v. Ah Sing, 95 Cal. 654, 30 P. 796; Anderson v. State, 28 Ind. 22; State v. Ready, 44 Kan. 697, 26 P. 58; State v. Barnett, 3 Kan. 250, 87 Am. Dec. 471; Com. v. Tanner, 5 Bush, 316; State v. Devine, 51 La.Ann. 1296, 26 So. 105; State v. Henry, 47 La.Ann. 1587, 18 So. 638; State v. Perley, 86 Me. 427, 41 Am. St. Rep. 564, 30 A. 74, 9 Am. Crim. Rep. 504; State v. O'Neil, 71 Minn. 399, 73 N.W. 1091; State v. Davidson, 38 Mo. 374; Acker v. Com. 94 Pa. 284; State v. Swafford, 3 Lea, 162; Clemons v. State, 92 Tenn. 282, 21 S.W. 525; Williams v. State, 10 Tex.App. 8; State v. Bohn, 19 Wash. 36, 52 P. 325; State v. Scott, 72 N.C. 461.

In the case at bar the words denoting the elements of the crime of robbery were used in the information in describing the assault, but nowhere used in describing the charge, the robbery, nor were they differently used by the court in his instructions. State v. Siegel, 265 Mo. 239, 177 S.W. 354; 22 Cyc. 33, cases cited under note 37; Jane v. State, 3 Mo. 61; State v. Dixon, 247 Mo. 668, 153 S.W. 1022; State v. Underwood, 254 Mo. 470, 162 S.W. 184; State v. Woodson, 248 Mo. 706, 154 S.W. 705; State v. McGrath, 228 Mo. 422, 128 S.W. 966; State v. Melton, 117 Mo. 618, 23 S.W. 889; State v. Nicholson, 116 Mo. 522, 22 S.W. 804; Nathan v. State, 8 Mo. 631.

The information was only sufficient to sustain a verdict of simple assault. 5 Enc. Pl. & Pr. 792; Territory v. Gonzales, 14 N. M. 31, 89 P. 250; Smith v. State, Tex. Crim. Rep. , 57 S.W. 949; McNamara v. People, 24 Colo. 61, 48 P. 541; State v. Clayton, 100 Mo. 516, 18 Am. St. Rep. 565, 13 S.W. 819; State v. Veverlin, 30 Kan. 611, 2 P. 630.

O. B. Burtness, State's Attorney, and T. B. Elton, Assistant State's Attorney, for respondent.

A continuance is not always a matter of right, but...