State v. Young

• Decision Date: 15 March 1927
• Docket Number: No. 5288.,5288.
• Citation: 212 N.W. 857,55 N.D. 194
• Parties: STATE v. YOUNG.
• Court: North Dakota Supreme Court

55 N.D. 194

212 N.W. 857

STATE

v.YOUNG.

No. 5288.

Supreme Court of North Dakota.

March 15, 1927.

Syllabus by the Court.

“Mistrial” is equivalent to no trial, and cannot be predicated on the opening statement to the jury merely because the state's attorney relates what he expects to prove.

The defendant in a criminal case has no constitutional or statutory right to a bill of particulars, and for reasons stated in the opinion it is held the court did not err in denying defendant's demand for one.

The limitation of cross-examination is within the sound discretion of the trial court, and it is no abuse of such discretion to sustain objection to defendant's demand for another rehearsal of her story by the prosecuting witness, when she has already related it in full both on direct and cross-examination, and is asked to tell it over again, “the same as you did before.”

The state's attorney is a competent witness for the impeachment of the defendant to relate a conversation with the defendant on a matter relevant to the issue, when the defendant has denied such conversation.

There is no variance between the pleading and the proof in a prosecution for rape of a girl under the age of consent, merely because the evidence shows force and violence were employed by the defendant at the time of the commission of the offense.

The trial court properly refused to give a requested instruction to the effect that, in determining the credibility of the complaining witness, the jury may take into consideration her morals, “in determining the weight and credit you will give to her.” A trial court has no right to single out any witness as the subject for special caution regarding credibility. Cautionary instructions should be applicable to all witnesses alike, and it is not the province of the court to single out any witness and by special instructions intimate an opinion as to the credibility. The credibility of witnesses is for the jury alone.

The jury is the sole judge of the facts in a criminal case, and, where testimony is such that reasonable minds may believe charge alleged in the information has been proved, the verdict of the jury is conclusive as to its sufficiency.

Evidence forgotten or otherwise overlooked is not the “newly discovered evidence” required as a basis for a new trial, and merely impeaching testimony is not ground for a new trial.

Appeal from District Court, Stutsman County; Fred Jansonius, Judge.

Max Young was convicted of first degree rape, and he appeals. Affirmed.

P. W. Lanier, of Jamestown, for appellant.

Geo. F. Shafer, Atty. Gen., and Russell D. Chase, of Jamestown, for the State.

BURR, J.

The defendant was convicted of the crime of rape in the first degree and sentenced to serve six years in the penitentiary. His 14 specifications of error may be arranged in 8 classes: Denial by the court of defendant's motion for a mistrial and continuance at the conclusion of the state's attorney's opening statement to the jury; denial of defendant's demand for a bill of particulars; unduly restricting the cross-examination of the prosecuting witness; permitting the state's attorney to testify as to an alleged admission made by the defendant; duplicity of the information, or variance between the pleading and the proof; refusal of the court to give a requested instruction; insufficiency of the evidence to sustain the verdict; and denying defendant's motion for a new trial.

[1] Defendant says the court erred in denying his “motion for a mistrial and continnance.” Counsel for the state, in his opening statement to the jury, apparently detailed what he expected to prove regarding some force and violence applied to the prosecuting witness in pulling her out of the car; and counsel for the defense immediately moved the court for a mistrial and continuance, on the ground that the information stated what he called “statutory rape” and made no allegations regarding force and violence, whereas the state intended now to prove force and violence. There was no mistrial and no showing for a continuance. This motion was properly denied. “Mistrial” is equivalent to no trial. Baird v. C., R. I. & P. R. R. Co., 61 Iowa, 359, 16 N. W. 207, 208. The case of Sonnesyn v. Akin, 14 N. D. 248, 262, 104 N. W. 1026, shows what a mistrial is.

After the arraignment and before entry of plea, defendant demanded a bill of particulars, in which he asked for the specific place where and time when, whether night or day, said alleged rape was committed. The information in this case gave the time and place, stating that the offense took place July 17, 1926, in the county of Stutsman.

[2] In this state the defendant in a criminal case has neither a constitutional nor a statutory right to a bill of particulars, and our Code makes no provisions for any such demand. Section 10685 of the Code requires the information to contain “a statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.” Section 10686 says the information “must be direct and certain as regards * * * the particular circumstances of the offense charged, when they are necessary to constitute a complete offense.” Section 10737 of the Code gives the defendant the right to demur to the information when it appears upon the face thereof “that it does not substantially conform to the requirements of this Code.” If the facts stated in the information were not sufficient to apprise the defendant of the charge against him so as to permit him to prepare his defense, then the defendant should have demurred to the information. No demurrer was interposed. Having failed to demur to the information on this ground he waived it. See section 10745 of the Code. The defendant relies upon the case of State v. Empting, 21 N. D. 128, 128 N. W. 1119, in his demand for a bill of particulars. This court did not say in such case that the defendant was entitled to a bill of particulars. In fact, the court specifically refused to pass upon the point of whether “a demand for a bill of particulars in a criminal case is ever permissible in this state.” There are states which have constitutional or statutory requirements allowing a bill of particulars such as Massachusetts. See Commonwealth v. Snell, 189 Mass. 12, 75 N. E. 75, 3 L. R. A. (N. S.) 1019. Again, in other states where there are no constitutional or statutory provisions, granting or refusing a bill of particulars in a criminal case is held to be purely a discretionary matter with the trial court. See Du Bois v. People, 200 Ill. 157, 65 N. E. 658, 93 Am. St. Rep. 183. There was no error in the trial court's refusal to grant the demand.

[3] The defendant alleges the court erred in unduly restricting the cross-examination of the prosecuting witness. Counsel for the defense asked the prosecuting witness this question:

“Will you please tell this jury, in your own words, what happened when Paul Krubeck and Max Young came out there that evening? Just tell it to the jury the same as you did before.”

The state objected to this as repetition, and the court sustained the objection. This will be found on page 26, Transcript. The record shows (page 9, Transcript) that on direct examination the prosecuting witness detailed fully all of the incidents connected with the alleged crime. On cross-examination, counsel for the defendant asked the prosecuting witness this question:

“Will you please tell the jury again just what happened there, from beginning to end, just like you told it before?” Page 17, Transcript.

In response to this question she again related all of the incidents which she said took place at the time of the commission of the alleged offense, to which counsel for the defendant responded by saying:

“That is very good. It is almost exactly like you told it here a few moments ago.”

Shortly afterwards he again asked her to repeat in the manner of the question ruled out. There was no error in this. The question of the cross-examination is a matter within the sound discretion of the court, and useless repetition should be stopped. She had already answered his question, been interrogated by him fully in regard to the matters which are said to have taken place, and there was no reason shown why she should have been compelled to state these facts over again.

[4] The defendant says the court erred in permitting the state's attorney to answer the following question, detailing a conversation he had with Max Young:

“What was then and there said in connection with that matter?” Answer: “I said to him ‘Max, now, on the square, how many times did you get next to this girl,’ referring to Florence Moran? And he said, ‘Just once.”’

Defendant says this purports to be a confession coming from the defendant, without any proper foundation laid. This testimony was offered in rebuttal. There was no error in permitting this. The defendant had denied making this statement to the state's attorney, and made no attempt by preliminary examination of the witness to establish grounds for excluding a confession. It was not an attempt to relate a confession claimed by the defendant to have been obtained from him by duress or promise. It was an impeachment of the defendant. The prosecuting witness stated there was only one act of sexual intercourse, and all of the witnesses, who claim to have heard the defendant brag about it, stated he said he had had intercourse with her once. He denied all this, and denied admitting to the state's attorney he had one act. The state had a right to contradict his denial.

[5] The grounds of alleged variance and duplicity are clearly untenable. The defendant says the information charged statutory rape, and that the proof offered was of two offenses, to wit, “rape without force and violence, and rape with force and violence.” He claims the state offered proof as to both offenses. Certainly, the information is not duplicitous, and, if it...