State v. Wright

• Decision Date: 14 May 1910
• Citation: 126 N.W. 1023,20 N.D. 216
• Parties: STATE v. WRIGHT.
• Court: North Dakota Supreme Court

20 N.D. 216

126 N.W. 1023

STATE

v.WRIGHT.

Supreme Court of North Dakota.

May 14, 1910.

Syllabus by the Court.

Error cannot be predicated upon the refusal of the court at the close of the state's case to advise an acquittal as the jury is not bound by such advice, and the court cannot, on such application, say, as a matter of law, that the evidence is insufficient to support a conviction, nor prevent the jury from giving a verdict, but such question may be disposed of by the court on motion for new trial in case of conviction.

Assignments of error not supported in appellant's brief by argument or citation of authorities will not be noticed by this court. Rule 14 (91 N. W. viii) which is applicable to the preparation of briefs in criminal causes, among other things provides: “In the body of his brief appellant shall present his reasons in support of each error assigned, with a concise statement of the principles of law applicable thereto with authorities supporting the same, treating each assignment relied upon separately, and such errors as are merely assigned and not supported in the body of the brief by reasons or authorities will be deemed to have been abandoned.” Such rule will be adhered to and enforced unless exceptional reasons appear why the same should be relaxed. No such reasons appear in the case at bar.

The presumption obtains in criminal as well as civil appeals that the record is free from error, and the appellant has the burden of affirmatively showing the existence of error.

Following the rule announced in State v. Johnson, 17 N. D. 554, 118 N. W. 230,held that, when the sufficiency of the allegations in an information is first challenged by motion in arrest of judgment, the same will be construed with less strictness than when the sufficiency thereof is raised by demurrer; and where the information states facts constituting an offense in general words and substantially in the language of the statute defining the offense, the information will be held sufficient as against attack by motion in arrest of judgment.

Appeal from District Court, Burleigh County; W. H. Winchester, Judge.

William Wright was convicted of an escape, and he appeals. Affirmed.

Spalding and Ellsworth, JJ., dissenting.W. L. Smith, for appellant. Andrew Miller, Atty. Gen., R. N. Stevens, and H. R. Berndt, for the State.

FISK, J.

Appellant was convicted in the district court of Burleigh county of the crime of escaping from prison. He thereafter moved for a new trial and in arrest of judgment which motions were denied, and he has appealed from the judgment of conviction and from the orders denying such motions. Numerous alleged errors are assigned in appellant's brief, but it will be unnecessary to notice them all in detail. Prior to noticing the various assignments of error, we will briefly refer to the facts.

Appellant, at the time of the alleged offense, was serving a term in the penitentiary pursuant to a judgment of the district court of Grand Forks county. He and others had been working in a hay field connected with the penitentiary grounds during the day under the supervision of one of the penitentiary guards, and in the evening, as the guard and others were leaving such field to return to such penitentiary, appellant and another were ordered by the guard to remain in the field for a short time for the purpose of raking up a little hay, after which they were to follow the guard to the penitentiary. Instead of doing as thus directed they ran away, and were thereafter captured some distance away.

It is claimed, first, that the trial court erred in denying defendant's motion made at the close of the state's case to advise a verdict of acquittal, the contention being that the state had failed to establish its case by showing that the escape was accomplished by means of fraud as alleged. A sufficient answer to such contention is that error cannot be predicated upon such a ruling. Section 10,017, Rev. Codes 1905, which is the same as section 1118 of the Penal Code of California, provides: “If, at any time after the evidence on either side is closed, the court deems it insufficient to warrant a conviction, it may advise the jury to acquit the defendant. But the jury are not bound by the advice, nor can the court, for any cause, prevent the jury from giving a verdict.” The Supreme Court of California has decided, and we think correctly, that an exception to the refusal of the court to advise an acquittal is not authorized. People v. Lewis, 124 Cal. 551, 553, 57 Pac. 470, 45 L. R. A. 783. See, also, People v. Daniels, 105 Cal. 262, 38 Pac. 720;People v. Stoll, 143 Cal. 689, 77 Pac. 818.

In People v. Lewis, Temple, J., in delivering the opinion of the court, said: “I think no exception is authorized to a refusal of the court to give such advice. Had it been given, the jury would not be bound to obey it. If the defense was satisfied that there was a total lack of evidence upon some essential issue, it could have submitted the case upon the evidence of the prosecution. But, as it did not do so, it was proper for the court on just terms to allow the defect to be supplied at any time before the final submission of the case.”

In People v. Daniels, supra, it was held, “that the obvious effect of this provision of the Code is to take from the court the power to determine, as a matter of law, at the close of the evidence for the prosecution, that such evidence is insufficient.”

We do not overlook the fact that in the later case of People v. Ward, 145 Cal. 736, 79 Pac. 448, the rule announced in People v. Lewis, supra, was disapproved. The decision is, however, by a divided court, but two of the judges concurred generally with the writer of the opinion, while Judges Angellotti, McFarland, and Van Dyke merely concurred in the judgment, and Shaw, J., dissented. We deem the rule announced by Temple, J., in People v. Lewis, both sound and supported by the weight of authority. It is entirely clear that under the provisions of section 10,017, Rev. Codes 1905, the court is powerless to take the case from the jury for any cause. “It may advise the jury to acquit the defendant; but the jury are not bound by the advice, nor can the court, for any cause, prevent the jury from giving a verdict.” In the light of this statutory language it would seem plain that error cannot be predicated upon such adverse ruling. By said statute the Legislature has vested in the court the power, in its discretion, to advise an acquittal, but no legal duty to give such advice is thereby imposed. Hence, error cannot be assigned upon a refusal to so advise the jury. The following authorities lend support to these views: McCray v. State, 45 Fla. 80, 34 South. 5;Goldman v. State, 75 Md. 621, 23 Atl. 1097;State v. Lynn, 3 Pennewill (Del.) 316, 51 Atl. 878;State v. Brown, 72 N. J. Law, 354, 60 Atl. 1117.

In McCray v. State, it was said: “While the trial judge would have the right, after all the evidence in a criminal case had been submitted, if he was clearly satisfied that all of said evidence would not warrant or support a verdict of guilty, to instruct the jury to acquit, this is a matter resting entirely within the discretion of the trial judge, and no error can be predicated upon his failure or refusal so to do.”

From the opinion in Goldman v. State we quote as follows: “The second exception, which we shall consider with the first, was taken to the refusal of the court to instruct the jury to render a verdict of not guilty as to John Murphy, on the ground that the evidence was insufficient to convict him. Now, it is too well established in this state to be seriously questioned that in the trial of all criminal cases the jury shall be the judges of law as well as of fact. * * * [Citing numerous cases.] In all of these cases it was held that a jury would not be bound by any instructions given by the court, but could disregard them. The court may, in its discretion, advise the jury as to the law and legal effect of the evidence, but is not bound to do so, and, being a matter entirely within its discretion, its refusal to do so cannot be reviewed by this court.”

In State v. Lynn defendant asked the court, at the conclusion of the state's evidence, to instruct the jury to acquit the defendant, and in refusing an exception to an adverse ruling the court said: “We cannot note an exception to this. * * * You can reach this in another way. When we come to charge the jury, you can then ask the court to direct the jury to return a verdict of not guilty. Then you can except properly. But this is not the place or the time.”

In State v. Brown, supra, we find the following language: “The seventh cause for reversal is that the trial court refused to direct a verdict for the defendant, notwithstanding a motion was made therefor. The direction of a verdict in a criminal case is a matter resting in the discretion of the court, and the refusal of the court to so direct is not reviewable on error.”

It is next contended that the court erred in denying defendant's motion for a new trial. Counsel for appellant, in support of his contention, merely refers us to the several alleged errors set out in his motion without in any manner supporting his contention by argument or citation of authorities, and he assumes it to be the duty of this court to search the record to ascertain whether any or all of such alleged errors are well founded. We quote from counsel's brief: “We take it to be the duty of the attorneys appearing in the trial of a criminal case, on behalf of the state as well as of the defendant, who are officers of the court, and also the duty of the court, to see that an accused has a fair trial, and that he is not deprived of his personal liberty without due process of law. So that, if the record in this case as presented to this court in any portion of it discloses that some part or parts of the procedure by which the judgment appealed from was reached was contrary...