153 N.W. 425 | N.D. | 1915
Lead Opinion
The defendant was convicted in the district court of Williams county, upon a charge of venue from McKenzie county, of the crime of grant larceny, and sentenced to imprisonment in the state’s penitentiary for the term of two years. Thereafter a motion for new trial was made and denied; and this appeal is taken from the judgment and the order denying a new trial.
There are 153 assignments of error, but 148 of these relate to rulings on the admission or rejection of evidence, and are grouped by appellant under five separate classes, viz., (1) Incompetent, argumentative, and improper rebuttal; (2) irrelevant and immaterial; (3) leading, suggestive, and calling for a conclusion of the witness; (4) assumption of a statement of facts and no foundation; (5) improper restrictions on cross-examination. It will be observed that the objections indicate that the rulings challenged related to matters largely within the discretion of the trial court. We have carefully examined every one of the assignments, and are unable to find any instance wherein the ruling of the trial court constituted prejudicial error. In fact, on the oral argument, it was virtually conceded by appellant’s counsel that the rulings of the trial court upon the admission or rejection of evidence would not in themselves entitle defendant to a new trial, but appellant’s counsel contended that these matters, when considered with the other matters urged in support of the motion for a new trial, would require that a new trial be granted. The remaining six assignments are based upon the insufficiency of the evidence to sustain the verdict; the alleged misconduct of a juror named Turner; and newly discovered evidence. These are the only assignments of error worthy of any serious consideration.
The testimony shows that on December 31st, 1912, one Elbert Payne was the owner of about 397 bushels of flax stored in a shack situated about 20 miles from the town of Kiverview, and only a short distance from where the defendant and his brother owned and farmed certain lands in McKenzie county in this state. In the morning of December 31, 1912, a son of one Clark had occasion to go to the shack in question to look for a certain knife which had been left there at some previous time, and when there he observed that the roof of the shack had been broken open and some flax taken out of the shack. He forthwith notified his father and also Mr. Payne, the owner of the flai
The question of the credibility of the witnesses and the credence to be given to their testimony was a matter for the jury, and its finding, based upon conflicting evidence, is binding upon this court. The only authority this court has is to review the rulings of the trial court to ascertain whether or not the defendant has been afforded a fair trial under the laws of this state. He was entitled to have the issues of fact submitted to a jury, and the finding of the jury upon .an issue cannot be set aside, if there is any substantial competent testimony in the record to sustain such finding. And there is ample testimony in this case from which the jury could find that the horses •of the defendant were not shod on December 31st, 1912. This is .also true of the other issues of fact involved in the action. The jury believed that the witnesses for the state told the truth upon all disputed issues, and that the defendant and his witnesses did not, and by their verdict have said that they were satisfied beyond a reasonable doubt of defendant’s guilt. The trial judge, who saw and heard all the witnesses testify, and had an opportunity to observe their demeanor while testifying, has added his approval to the jury’s finding by denying a motion for a new trial. The findings of the jury and trial court upon this question are binding on this court.
The charge of misconduct of a juror is based solely upon the affidavit of one Jensen. The material part of the affidavit of Jensen is .as follows: “That while he was attending said trial as a spectator, .as aforesaid, he became acquainted with one W. C. Turner, who was one of the regular panel of jurors during said term, and who was one of the jurors who returned the verdict finding the defendant above named guilty of the charge of grand larceny. That after he became ‘acquainted with the said juror, Turner, as aforesaid, and while said .action was being tried, before the same was closed either by the state or by the defendant, and while the defendant above named was .submitting testimony in his behalf,-affiant and said Turner were sitting-in front of the Great Northern Hotel in said city of Williston, conversing; said Turner aforesaid stated to affiant that the defendant above
In opposition to the affidavit of Jensen, the state tendered the affidavit of the juror Turner, which is as follows: “That he is a citizen and resident of Williams county, North Dakota, and' that he is fifty-four years of age; that his postoffice is Buford, North Dakotá, but that his nearest railroad point is Bainville, Sheridan county, Montana. That he was one of the jurors on the regular panel for the June, 1913, term of the district court of Williams county, and was one of the jurors who tried the case of the State against Ira Cray, in which the defendant was charged with the theft of certain flax; that affiant has' read a copy of an affidavit of one John II. Jensen, exhibited to him by C. C. Converse, of Schafer, North Dakota, in which said Jensen states that this affiant stated to said Jensen that this affiant knew that the roads in the vicinity where the flax was claimed to have been stolen were not frozen and hard, but that they were dusty, he having done considerable hauling that fall and winter himself; and' affiant
The question is whether or not the juror Turner was shown to be an unfit person to discharge the duties of a juror in this case. The
It is also well settled that the question of granting or denying a motion for a new trial on the ground of alleged misconduct on the part of a juror is largely within the sound judicial discretion of the trial court, and the appellate court will not interfere unless an abuse •of such discretion appears. In State v. Robidou, 20 N. D. 518, 523, 128 N. W. 1124, Ann. Cas. 1912D, 1015, this court said: “The refusal or denial of a motion for a new trial for alleged misconduct •on the part of the jury is, as a general rule, a matter within the discretion of the judge presiding at the trial; and unless it appears that this discretion was abused, or that there has been palpable error, or unless it appears that the trial court refused to review and consider the evidence by which its consideration of the motion should have been guided or controlled, the refusal of the trial judge to grant a new trial will not as a general rule be disturbed on appeal. 12 Enc. Pl. & Pr. 561, 562 and cases cited; State v. McDonald, 16 S. D. 78, 91 N. W. 447; State v. Andre, 14 S. D. 215, 84 N. W. 783; Pettibone v. Phelps, 13 Conn. 445, 35 Am. Dec. 88; State v. Allen, 89 Iowa, 51, 56 N. W. 261; State v. Beasley, 84 Iowa, 83, 50 N. W. 570; Perry v. Cottingham, 63 Iowa, 41, 18 N. W. 680; State v. Salverson, 87 Minn. 41, 91 N. W. 1, 12 Am. Crim. Rep. 644; People v. Johnson, 110 N. Y. 134, 17 N. E. 684; State v. Cucuel, 31 N. J. L. 249; State v. Taylor, 134 Mo. 109, 35 S. W. 92; State v. Howard, 118
As already stated, a new trial was also asked on the ground of newly discovered evidence, and several affidavits were offered in support of this ground of the motion. Counter affidavits were offered by the state to show that all of the newly discovered evidence was either known to the defendant at the time of the former trial, or could have been known if he had exercised due diligence. Practically all of the newly discovered evidence is cumulative, and some of it doubtless was known to the defendant at the time of the former trial. Appellant asserts that the rule laid down in Heyrock v. McKenzie, 8 N. D. 601, 80 N. W. 762, to wit: “A new trial will be granted on the ground of newly discovered evidence only where the latter is of such character as will probably change the result of the former trial,” — should be applied. And he earnestly contends that the alleged newly discovered evidence is of such nature that on a new trial a different result is probable. This was, however, a matter peculiarly within the knowledge of the trial judge, who saw and heard the witnesses, including
Appellant also contends that the rule requiring a showing that the-newly discovered evidence could not with reasonable diligence have-been discovered and produced by the defendant upon the former trial,, has been greatly relaxed by the courts, — especially in criminal cases. New trials are granted only in the interest of justice. And the question of whether or not the ends of justice demand a relaxation of the-rule in question was also a matter to be determined in the first instance by the trial court; and subject to review in this court only in case of abuse of discretion on part of that court. It may be observed that our law making newly discovered evidence a ground for a new trial in criminal cases reads as follows: . When new evidence is discovered material to the defense, and which the defendant could not, with reasonable diligence, have discovered and produced at the trial.” . . . Comp. Laws 1913, § 10917, subdiv. 7. The fundamental rule applicable to motions for a new trial on the ground of newly discovered evidence is that this is addressed to the sound judicial discretion of the trial court, and that its action thereon is conclusive on this court, unless it appears affirmatively that the discretion vested in the court below has been abused. Heyrock v. McKenzie, supra; State v. Albertson, 20 N. D. 512, 128 N. W. 1122; State v. Brandner, 21 N. D. 310, 130 N. W. 941; State v. Reilly, 25 N. D. 339, 376, 377, 141 N. W. 720; Hayne, New Trial & App. § 8. See also Aylmer v. Adams, 153 N. W. 419.
It was for the trial court to pass upon all questions presented by the motion for new trial, and determine whether the newly discovered evidence was material, and would be likely to produce a different result upon a retrial of the case, and also whether or not defendant could, or could not, by the exercise of reasonable diligence, have produced such evidence upon the former trial. The trial judge answered these questions adversely to the contentions of the appellant, and his finding is conclusive on this court, unless it can be said that in so. doing he has abused his discretion. Upon a careful consideration of all the affidavits submitted upon this motion, we are compelled to say that no such abuse is shown. There being no error justifying a reversal of the judgment or the order denying a new trial, they must be affirmed. It is so ordered.
Rehearing
(On Behearing) A petition for rehearing filed herein ably and earnestly presents that a new trial should be granted on the ground of newly discovered evidence. It is contended that this evidence is of such character that a different result would be probable on a retrial. And exception is taken to that part of the former opinion wherein we said that “this was, however, a matter peculiarly within the knowledge of the trial judge, who saw and heard the witnesses, including the defendant, observed their manner and appearance, and was familiar with the various incidents in the trial of the action.” In discussing this matter the petition for rehearing says: “Just how Judge Fisk, sitting as trial judge, is more able to determine the probable result of a trial than any of the members of this learned court, with the same record before them, is beyond our comprehension.”
If the rule contended for by appellant’s counsel were adopted, it would abolish the fundamental principle applicable to motions of this kind, viz., that they are addressed to the sound judicial discretion of the trial court. The law applicable to motions of this kind has been fully discussed by this court in the case of Aylmer v. Adams, 153 N. W. 419, and we can add nothing to what has been there said. We have before us, it is true, a statement of case, containing the testimony offered, reduced to narrative form, and also the affidavits relative to the newly discovered evidence. But even at that we would be compelled to base our judgment upon “the comparison of one lifeless record with another, — the affidavits with the record of the proceedings -on the trial.”
The trial judge was entirely differently situated. He had seen and heard the witnesses, and observed their appearance and demeanor, and was familiar with the trial and its various incidents. See Braithwaite v. Aiken, 2 N. D. 57, 63, 49 N. W. 419. When the trial judge considered the alleged newly discovered evidence he was required to weigh it with the evidence received at the trial, and in such consideration the peculiar knowledge received by him during the trial entered into and formed part of the reasons on which his judgment was based, when he held that a new trial should be denied.
In Spelling on New Trial and Appellate Practice, § 221, it is said: '“The probability of a different result upon a retrial, often suggested
The petition for rehearing is based on the erroneous theory that this court has denied a new trial. The question of whether or not a new trial ought to be granted was primarily a question for the trial court. The function of this court on this appeal is merely to review the ruling of the trial court on this motion, and this review is limited to a determination of the question of whether in denying a new trial the trial court abused its discretion, and thereby effected an injustice. The discretion vested in the trial court should always be exercised in the interests of justice. The presumption is that it was properly exercised. Even if all the newly discovered evidence had been offered at the trial, there would still be ample evidence to sustain the verdict. The trial court, after considering the newly discovered evidence, and weighing the same with the evidence adduced upon the trial, was still of the opinion that substantial justice had been accomplished at the former trial. There is nothing to justify this court in saying that the trial court erred in its conclusion, or abused its discretion in so holding. A rehearing is denied.