State v. Whiteman, Cr. 271

• Decision Date: 27 September 1956
• Docket Number: Cr. 271
• Citation: 79 N.W.2d 528
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Oscar WHITEMAN, Jr., Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 528

79 N.W.2d 528

STATE of North Dakota, Plaintiff and Respondent, v. Oscar WHITEMAN, Jr., Defendant and Appellant.

Cr. 271.

Supreme Court of North Dakota.

Sept. 27, 1956.

Rehearing Denied Dec. 19, 1956.

Syllabus by the Court.

1. Where in a criminal case two defendants are charged jointly with the commission of a crime, they are not entitled to separate trials as a matter of right. The trial court, in its discretion for special reasons may grant a separate trial, Section 29-2107, NDRC 1943.

2. For reasons stated in the opinion it is held that it was not error for the trial court to deny motion of defendant-appellant for a separate trial.

3. Where defendants in a criminal case are charged with murder in the first degree, and there is reasonable ground to doubt in which of two or more degrees they are guilty they can be convicted of the lowest degree only.

4. In the instant case it is held that under the evidence the trial court properly instructed the jury on offenses of lesser degrees than murder in the first degree.

5. For reasons stated in the opinion it is held that objection by the state to cross-examination by defendant of state's witness Amsdel relative to matters not covered on direct examination was properly sustained by the trial court.

6. The declaration by the trial court of a mistrial is a stringent step to be taken by the trial court upon the development of some fact or occurrence that would render further proceedings nugatory.

7. Where a motion for mistrial is made by the defendant on the ground of an improper question asked by the state's attorney of the defendant, and such question was not completed and no answer given thereto, the denial of the motion for mistrial was proper.

8. Evidence bearing upon the question whether statements or admissions by a defendant in a criminal case were made voluntarily or involuntarily may be considered by the jury under proper instructions in determining the weight to be given to such statements or admissions.

9. In passing upon a motion for a new trial based upon the insufficiency of the evidence, the trial court has a wide discretion, and his determination with respect to such sufficiency will not be disturbed unless there appears to have been abuse of such discretion.

10. The evidence is examined and is held to be sufficient to support the verdict of the jury finding the defendant-appellant guilty of manslaughter in the first degree.

Strutz, Jansonius & Fleck, Bismarck, for appellant.

Leslie R. Burgum, Atty. Gen., T. H. H. Thoresen, Asst. Atty. Gen., for respondent.

SATHRE, Justice.

This is a criminal action. On January 14, 1953 a criminal complaint was filed in the justice court of William Dawes, Justice of the Peace in and for Dunn County, North Dakota charging the defendants Oscar Whiteman Jr., and Donald Malnourie, jointly with the crime of murder in the first degree between the hours of 6:30 and 8:30 p. m., committed on January 1, 1953 in Dunn County, North Dakota, perpetrated by said defendants in committing or attempting to commit rape upon Cynthia Starr, a minor girl of the age of 16 years, by striking her a below on the head with a wine bottle, from which blow she died.

Prior to the hearing before the Justice of Peace, each of the said defendants, Oscar Whiteman Jr., and Donald Malnourie had signed a written and sworn confession in which they admitted the crime as charged. These confessions were executed on the 10th day of January 1953. At the hearing before the Justice of the Peace on January 14, 1953 the defendants signed a joint written and sworn confession in which they admitted the crime as charged in the complaint filed in the justice court. Upon said written confession the state's attorney of Dunn County on January 16, 1953, filed an information charging said defendants jointly with the crime of murder in the first degree. Thereafter both defendants were brought before the Hon. Harvey J. Miller, Judge of the District Court of the Sixth Judicial District, at Dickinson, North Dakota, and on the 17th day of January 1953, both defendants entered pleas of guilty of murder in the first degree. After the hearing before said District Court the defendant Donald Malnourie was sentenced to life imprisonment in the state penitentiary on his plea of guilty to murder in the first degree. The defendant Oscar Whiteman Jr., was sentenced to thirty years in the state penitentiary, the court having reduced his plea of guilty to murder in the second degree.

Thereafter both of the defendants moved the trial court to vacate the judgments and sentences entered in their respective cases and allow them to withdraw their pleas of guilty and to enter pleas of not guilty and to defend the actions. The motions to vacate the pleas of both defendants were made upon the grounds that the confessions made by them and upon which the judgment and sentences were entered, were involuntarily made and were obtained through fraud, coercion, deceit, duress, torture, mob violence and other prejudicial acts which destroyed the free will of said defendants, and that said acts were perpetrated and committed upon said defendants by the law enforcement officers of Dunn County, North Dakota on the 9th day of January 1953.

The trial court denied the motions of both defendants for leave to withdraw their pleas of guilty and entered its order accordingly. Both defendants appealed to this court from said order. Said appeals were heard before this court and the decision in the case of State v. Whiteman appears in 67 N.W.2d 599, and the case of State v. Malnourie appears in 67 N.W.2d 330. This court reversed the order of the district court in both cases and granted the defendants the right to withdraw their pleas of guilty and to defend the actions against them in district court.

The defendants moved for a change of venue from Dunn County which motion was granted and the case was tried in the district court of the fourth judicial district, Burleigh County, North Dakota. The defendants were tried jointly to the court and a jury. The jury returned separate verdicts finding each defendant guilty of manslaughter in the first degree and fixed and determined the punishment at imprisonment in the state penitentiary for a period of fifteen years. The defendant Donald Malnourie did not appeal. The defendant Oscar Whiteman Jr., made a motion for a new trial. The trial court made its order denying the motion and the defendant appealed from said order.

In the specifications of error it is urged that the trial court erred in the following particulars.

'1. That the trial court abused its discretion in denying the motion of defendant Oscar Whiteman for a separate trial.

'2. That the trial court erred in instructing the jury that they could bring in a verdict of lesser offenses than were charged in the state's information charging murder in the first degree.

'3. That the trial court erred in not allowing the defense to cross-examine the state's witnesses on matters the state had not gone into on direct examination.

'4. That the trial court erred in not granting the motion of the defendant Malnourie for a mis-trial on the grounds of improper questioning by counsel for the State, and that such refusal was prejudicial to the defendant Oscar Whiteman Jr.

'5. That the trial court erred in admitting in evidence certain alleged admissions of the defendant Oscar Whiteman Jr. on the ground that they were involuntarily made.

'6. That the verdict of the jury was clearly against the evidence as to the defendant Oscar Whiteman Jr.

'7. That the court erred in not granting the motion for the defendant Oscar Whiteman Jr., directing the jury to bring in a verdict of dismissal of the action as against the said Oscar Whiteman Jr.'

We shall discuss these specifications in the order stated.

The appellant Oscar Whiteman Jr., contends that his defense is antagonistic to that of the defendant Donald Malnourie and that he would be prejudiced by a joint trial because evidence would be introduced which would not be admissible against him but would be competent as against his codefendant Donald Malnourie; that confessions or admissions alleged to have been made by the defendant Malnourie and admitted in evidence would prejudice the jury against the appellant and that such prejudice could not be cured by any instructions of the trial court.

Section 29-2107, NDRC 1943 provides that persons jointly accused of crime shall be tried jointly and reads as follows:

'Whenever two or more persons shall be jointly charged with any crime, they shall be tried jointly, subject to the power of the court, in its discretion and for special reasons, to order separate trials as to one or more of the defendants, and when tried jointly there may be joint or several convictions or acquittals, as the jury may determine the facts.'

It will be noted under Section 29-2107 persons jointly accused of crime shall be tried together subject to the power of the court, in its discretion and for special reasons to order separate trials as to one or more of the defendants.

In the instant case the two defendants were charged jointly with the crime of murder of Cynthia Starr while attempting to commit rape, under Section 12-2712, NDRC 1943.

The first question to determine is whether or not under the facts and circumstances in the case the trial court abused its discretion in denying defendants' motion for a separate trial.

On the question as to the right to separate trials in criminal cases 23 C.J.S., Criminal Law, Sec. 933, pages 217, 218, and 219 states the rule as follows:

'Unless such privilege is conferred by statute or court rule, as considered infra this section, defendants jointly indicted are not entitled to a severance or separate trials as a matter of right. Both at common law and under statutes declaratory thereof, the grant or denial of a severance or separate trial to defendants jointly indicted rests in the discretion of...