72 N.W. 935 | N.D. | 1897
The defendant was charged with and convicted of the crime of burglary, committed in a dwelling house occupied by human beings, on the night of December 25, 1896, at Leonard, in the County of Cass, N. D. It appears by the evidence that the dwelling house was, at the time, occupied by one John Boos and his family, the living rooms being connected, by a door through a partition, with a store of general merchandise belonging to said Boos. In the store, and near the door leading into the living rooms, there was an iron safe, the outer door of which was not locked on the night of the burglary, but the inner door, to the cash drawer, was locked. There was also a door leading directly outdoors from the store, which door was closed and bolted that night, but was pried or forced open by the burglar, by breaking off a part of the side piece where the bolt went in, and removing the bolt. On an examination made after the burglary, the door of the cash drawer in the safe appeared to have been indented or hammered as if with a punch. About 11 o’clock p. m. of the night in question, Boos, who was then in the living rooms with his family and others, heard pounding in the storeroom, and, upon peering into the storeroom through the connecting door, he heard some one moving rapidly towards the outer door of the store, and caught a view of some of the outlines of the retreating figure of a man; but in so doing he did not identify the intruder. The defendant was in the store in the forenoon of the day of the burglary, and admits that he remained in the village of Leonard until the evening of that day, and then (according to his testimony) left, stealing a ride on the train going in the direction of Woods station, where he was subsequently found and arrested. It was a cold night, and there was snow on the ground nearly kneedeep. Fresh tracks resembling those made by the defendant were found leading circuitously from the broken outside door to the railroad, located some 200
Defendant, by his counsel, made nine separate requests for instructions, numbered from i to 9, inclusive. Requests num
Defendant claims error in this court upon the ground that his two requests, numbered, respectively, 4 and 6, were wrongfully modified by the trial court, and read to the jury after such modification, and then were indorsed by the court erroneously as “given.” If this claim is sustained as a matter of fact, the request was not given, and should have been indorsed as “refused.” Such a modification as that claimed is forbidden by the statute. Section 8176, Rev. Codes, declares that “all instructions asked for by either party shall be given or refused by the court without modification or change unless modified or changed by the consent of the counsel asking the same.” We think the changes claimed to have been made in these requests could make little or no difference in their meaning, and were intended to bring out the same idea and meaning with greater emphasis. But we cannot endorse the practice of modifying requests without the consent of counsel. The statute distinctly forbids any such alteration of requests. In the case at bar, however, we are not required to pass upon the alleged error, nor determine whether or not it was prejudicial to the substantial rights of the defendant, for the reason that an inspection of the abstract fails to disclose the fact, affirmatively, that the two requests we are considering here, or either of them, were modified by the trial court, “without the consent of counsel.” Conceding, without
The court, in its charge to'the jury, used the following language: “Now, gentlemen of the jury, in this case the defendant has seen fit to go upon the stand; and I charge you, with reference to that, that you are to consider his testimony just as you would consider
Another distinct feature of’ the charge under consideration deals with the question of the effect produced upon the credibility of a witness by false swearing. The court said in its instruction: “If you find that any witness has sworn falsely with reference to any material fact at issue, you are at liberty to disregard all of his evidence, unless you find his testimony is corroborated by other evidence in the case.” This charge cannot be sustained as a correct exposition of the law. The court omitted to state the qualification. To swear falsely upon a material point does not necessarily have the effect stated by the court, unless it is done willfully or knowingly. See McPherrin v. Jones, 5 N. D. 261, 65 N. W. Rep. 685. But this case cannot be reversed for this error in the charge, because it has not been excepted to by counsel. The language of the exception points unmistakably to the other feature of the instruction, viz. that relating to the interest which the defendant had in the result of the tidal, with reference to the weight of his testimony as a witness. It is well settled that where a charge to the jury embodies several features, one of which is proper, an exception to the entire charge will not be sustained. It is equally well settled that, where an exception is leveled at one of several features in an instruction, other features not pointed out by the exception are not affected by it.
It appears that the defendant’s counsel in this case saw fit to
In the course of its charge to the jury, the trial court read to the juiy the several sections of the statute which l'espectively define burglary in its several degrees, from the first to the foui'th, inclusive. Defendant assigns error in this coui't especially upon the reading of those sections of the code which severally define bui'glary in the second and fourth degrees. The point of these exceptions is that the law defining the crime of burglary in the second and fourth degrees did not apply to the evidence or the facts of this case, and hence, as counsel claims, tended to mislead and confuse the jury. The question presented is whether, under the evidence and facts of this case, it was prejudicial ei'ror to l'ead from the statute the definitions of burglary in the second and fourth degi'ees, such reading not being accompanied with comments on the part of the coui't bearing upon either the second or fourth degree of burglary. The evidence as to the time, place, and circumstances of the offense is undisputed, and was all offered by the state; and it tended to show, and did show conclusively, that the offense charged, viz. burglary in the first degree, was committed, if any crime was committed. Nor does the evidence raise any doubt to be settled by the jury as to the degx-ee of the offense. Under the facts of this case, we think a,
There are other minor features of the charge to the jury upon which counsel have assigned error. This court has considered all of them carefully, and they are not sustained. We think, however, that no good purpose will be subserved by a discussion of such features in this opinion. After a careful examination of the charge of the court to the jury as a whole, and of all of its parts, we are of the opinion that the defendant’s rights were safeguarded carefully by the tidal court, and that none of his substantial rights under the law have been prejudiced.
The judgment of the court below will be affirmed.