State v. Zimmerman

• Decision Date: 23 December 1930
• Docket Number: No. 64.,64.
• Citation: 233 N.W. 845,60 N.D. 256
• Parties: STATE v. ZIMMERMAN.
• Court: North Dakota Supreme Court

60 N.D. 256

233 N.W. 845

STATE

v.ZIMMERMAN.

No. 64.

Supreme Court of North Dakota.

Dec. 23, 1930.

Syllabus by the Court.

In a prosecution for robbery, the defendant, having been convicted, appeals. The record is examined, and it is held, for reasons stated in the opinion, that the evidence is sufficient to sustain the verdict as returned by the jury.

Syllabus by the Court.

Where, in a criminal case, after the cause is submitted to the jury, one of the jurymen is permitted to leave his fellow jurymen and go to the post office to procure his mail, such separation constitutes an irregularity contrary to the provisions of section 10864, C. L. 1913. But, where it affirmatively appears that no improper influences were used or attempted, and that no prejudice could have resulted therefrom, such irregularity does not entitle the defendant to a new trial.

Syllabus by the Court.

Whether, under the provisions of section 10917, C. L. 1913, a new trial shall be granted on the ground of newly discovered evidence, is a matter largely within the discretion of the trial court, and, the court having exercised such discretion adversely to the defendant, his action in so doing will not be disturbed except in case of abuse of such discretion.

Syllabus by the Court.

The record in the instant case is examined, and held, that it does not appear that the trial court abused his discretion in denying the defendant's motion for a new trial.

Appeal from District Court, McHenry County; G. Grimson, Judge.

Arthur Zimmerman was convicted of robbery, and he appeals.

Affirmed.E. R. Sinkler, G. O. Brekke, and F. J. Funke, all of Minot, and D. J. O'Connell, of Towner, for appellant.

Nels G. Johnson, State's Atty., of Towner, and James Morris, Atty. Gen., for the State.

NUESSLE, J.

Appellant, convicted of the crime of robbery, moved for a new trial. His motion was denied. He appeals from the judgment of conviction and from the order denying his motion for a new trial.

The complaining witness, Joe Krim, lived with his sons on a farm near the village of Karlsruhe, in McHenry county, about 45 miles by well-traveled road from the city of Minot. On the evening of October 12, 1929, after dark, and between the hours of 8 and 9 o'clock, three men in an automobile drove into the complaining witness' farmyard. Joe Krim and his son George were at home alone at the time. The men got out of their automobile, assaulted Joe and George, threw them to the floor, tied them with strips torn from a sheet, and then removed Joe's shoes and tortured him by stabbing the soles of his feet with a knife until he disclosed where he had his money hidden. They took the money, amounting to $1,165, and departed.

On the afternoon of October 12th, between 4 and 5 o'clock, one Jerome borrowed an automobile in the city of Minot. This automobile was later identified as that used by the three men who assaulted and robbed Krim. The automobile was returned to the owner about 11:30 that evening. The speedometer indicated that it had been driven 97 miles. Three days after the robbery appellant, Zimmerman, was arrested as one of the robbers. Both Joe Krim and George Krim positively identified him. The Krims' description of one of the men who committed the crime fitted Jerome. Jerome fled and was not apprehended. The third man was not identified. The automobile which Jerome borrowed was capable of traveling 68 miles an hour. Jerome was a very expert and very rapid driver.

Zimmerman was informed against on a charge of robbery and brought to trial. The case was submitted to a jury, which returned a verdict of guilty of robbery as charged. Thereafter Zimmerman moved for a new trial on the grounds, first, that the evidence was insufficient to sustain the verdict returned against him; second, that without his consent the jury were permitted to separate after the case was submitted to them and before they arrived at a verdict; and, third, on the ground of newly discovered evidence. The motion was denied.

In support of this appeal, appellant urges the same grounds advanced in support of his motion for a new trial.

[1] The first proposition urged by the appellant is that the evidence is insufficient to sustain the verdict. For his defense the appellant relied wholly on the establishment of an alibi. The witnesses Krim positively identified Zimmerman as one of the robbers. Their testimony was more or less uncertain as to the exact time of the robbery, but it is clear that it occurred between the hours of 7 and 9 o'clock on the evening of October 12th. Another of the state's witnesses, a resident of Minot, testified that he was acquainted with Zimmerman and Jerome; that he knew the automobile which Jerome borrowed; that at half past 6 on the evening in question he saw Jerome driving this car in Minot; that Jerome was then accompanied by two other men, one of whom was Zimmerman. The defendant did not take the stand himself, but he produced many witnesses to establish that he was in the city of Minot at the time the robbery took place or at such times that it was manifestly impossible for him to have participated in it. Many of these witnesses were reputable citizens. They were positive in their statements as to having seen Zimmerman in Minot on the evening in question and as to the times when they saw him on that evening. The testimony of one or another of these witnesses fully covered the time excepting from half past 6 until twenty minutes after 9. However, while they were in the main positive as to the particular hour and minute when they had seen Zimmerman in Minot on the evening in question, yet it appeared that they fixed the hour and minute by estimate and approximation rather than by having noted the exact time when they saw him. All were confident that they did see him on the evening of the 12th, and, the matter of his arrest having come to their attention, they reckoned back and fixed the time by some incident or occurrence, some meeting or conversation, or by reference to their daily habits. Nothing extraordinary had occurred whereby their attention was called to the particular moment, and so the time was fixed by estimate and approximation. In some instances, where two or more witnesses testified as to having seen Zimmerman in a particular place and in particular company, there was considerable difference among them as to the time when he was so seen. In any event, the question was a question of fact. It was peculiarly for the jury, and, the jury having determined it adversely to the appellant, the record does not so conclusively establish his contention as to warrant us in setting the verdict aside. See State v. Hanrahan, 49 S. D. 434, 207 N. W. 224, 225. We must therefore hold that the evidence is sufficient to sustain the verdict.

[2] The statute, Compiled Laws of 1913, prescribes the rules that should govern the conduct of the jury both before and after the case is submitted to them.

Ҥ 10857. The jurors sworn to try a criminal action may, at any time before the cause is submitted to the jury, in the discretion of the court, be permitted to separate, or be kept in charge of proper officers. The officers must be sworn to keep the jurors together until the next meeting of the court, to suffer no person to speak to or communicate with them, nor to do so themselves, on any subject connected with the trial, and to return them into court at the next meeting thereof.

§ 10858. The jury must also, at each...