State v. Wilson

• Decision Date: 28 April 1966
• Docket Number: Cr. 336
• Citation: 142 N.W.2d 106
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Johnnie WILSON alias Johnnie Williams, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 106

142 N.W.2d 106

STATE of North Dakota, Plaintiff and Respondent, v. Johnnie WILSON alias Johnnie Williams, Defendant and Appellant.

Cr. 336.

Supreme Court of North Dakota.

April 28, 1966.

Syllabus by the Court

An appeal from a criminal judgment must be taken within three months after its rendition.

Conmy, Conmy, Rosenberg & Lucas, Bismarck, for defendant and appellant.

Helgi Johanneson, Atty. Gen., and Albert A. Wolf, State's Atty., Bismarck, for plaintiff and respondent.

MURRAY, Judge.

This is an appeal by the defendant, Johnnie Wilson, alias Johnnie Williams, from a final judgment of conviction, of the crime of burglary in violation of Section 12--35--02 of the North Dakota Century Code.

We have no jurisdiction to entertain this appeal. Section 29--28--08, North Dakota Century Code provides that an appeal from a judgment may be taken within three months after its rendition, and, from an order, within sixty days after it is made. The chronology of events in this case is as follows:

Verdict of conviction was returned on January 28, 1965.

Judgment of conviction was returned on February 1, 1965.

Order denying motion for new trial was issued on February 19, 1965.

Notice of Appeal herein was served on November 22, 1965.

Notice of Appeal was from the judgment alone, not from the order denying motion for new trial. This alone would have prevented appellant from raising the sufficiency of the evidence. See State v. McClelland, 72 N.D. 665, 10 N.W.2d 498.

In any case respecting the judgment appealed from the three months period had clearly elapsed, before notice of appeal was served.

The right of appeal is statutory, and an appeal must be taken within the time that the legislature has seen fit to provide. In the form of dictum, this is to be found in State v. McClelland, supra.

Under a markedly similar statute, the South Dakota Court so held in State v. Hueremann, 37 S.D. 649, 159 N.W. 398.

More directly, this Court has held, that

'An appeal from a criminal judgment must be taken within three months after its rendition.' State v. Prince, (N.D.) 66 N.W.2d 796, at 799.

The Minnesota Supreme Court, in more recent and numerous decisions than our own, has adhered strongly to this principle. See, State ex rel. Elkins v. County of Ramsey, 257 Minn. 21, 99 N.W.2d 895; State v. Wiley, 260 Minn. 88, 108 N.W.2d 774.

However, for reasons hereinafter stated, we have examined the state of the record, and the evidence. This is a criminal case. Appellant is an indigent, whose appointed counsel defended him aggressively and with competence, and this appeal was taken In forma pauperis by leave of the court below. To determine whether this appellant's rights were protected and that he had his day in court, we have thoroughly examined the entire record, including physical examination of the exhibits.

The facts in this case are substantially as follows:

Charles Tighe, an attorney, resides with his wife, Dorothy Tighe, at 1108 West Highland Acres Road in Bismarck, North Dakota. The Tighes have no children. The Highland Acres Addition is a rather outlying residential district. To the west of the Tighe residence, there is a barren open area, owned and used by the North Dakota National Guard for its purposes, beyond which lie the main-line tracks of the Northern Pacific Railway Company. These railway tracks, in turn, continue westward via a bridge over the Missouri River into Morton County, North Dakota. This area of Morton County, although unincorporated, is commercially developed and borders on the east edge of the City of Mandan, North Dakota.

On the evening of Friday, December 11, 1964, Mr. and Mrs. Tighe left, via an evening train, for Fargo, North Dakota. They returned, via train, early on the morning of Sunday, December 13, 1964, and reached their home at approximately 4 A.M.

Prior to leaving, the Tighes had checked their doors and locks, and everything was in order. On returning, however, they found immediate evidence that an intruder had broken into their home.

The front door, although shut, was unlocked. In the main bedroom, bed clothing was disarranged. Two pillow-cases were missing, as were the contents of a liquor cabinet.

On the lower level of the home, a window on the southwest quarter of the house had been smashed. A basement door opening onto the ground level was ajar, being held open by an electric lantern which evidently the intruder had placed there. An outer door was found open also. Having evaluated this situation, Charles Tighe phoned the police.

After calling the police, the Tighes made a further check, during which Mrs. Tighe found that a drawer containing jewelry had been virtually emptied. Neckties belonging to Mr. Tighe were missing from a closet rack.

Officers and detectives arrived and were at work on the case by 4:30 A.M.

The first clue noted were footprint type marks, barred in design, on the cement floor of the basement near the broken window of presumed entry. The Tighe's own stepladder was found emplaced by the broken window, outside the building. Pry marks found on the frame of the window of entry, were found to have been made by an instrument resembling a screwdriver and with a blade width of about one-quarter inch.

With the coming of daylight, officers of the Detective Bureau of the Bismarck Police Department, continued the investigation in a careful and methodical manner. They followed tracks which contained the same barred pattern above referred to, through the snow from the Tighe home, down over the barren National Guard area, to the Northern Pacific railroad tracks, thence along said tracks to a warming shack at the eastern end of the railroad bridge. To avoid confusion, we refer to this as Warming Shack #1. The tracks led into the shack. In the shack were found small boxes which had contained some of the Tighe jewelry stolen in the burglary. By digging around the stove in the shack, partially burnt jewelry boxes and items of jewelry, part of the Tighe loot, were also found.

In the course of this tracking, the detectives measured the barred tracks. The measurements were later compared with footwear worn by appellant when apprehended, and found to correspond generally, although, no casts had been made of said prints.

The tracks continued onto the railroad bridge, were not discernible on the bridge due to less snow, but again resumed on the west, or far, end of the bridge. The tracks were followed off the railroad right-of-way at a Freeway overpass and thence along said then-uncompleted freeway towards a motel area. However, the tracks were lost in an area bare of snow and the trail could not again be immediately picked up.

The same tracks were again found in the motel area referred to and in the Mandan railroad yards, which is the site of the shack we shall hereinafter refer to as Warming Shack #2.

Two days after the burglary, on Tuesday, December 15, at approximately 5 A.M., the appellant was found in Warming Shack #2 in the Mandan railroad...