105 N.W. 1108 | N.D. | 1905
The defendant was convicted of the crime of larceny upon an information filed by the state’s attorney of Grand Forks county. A motion for new trial was overruled, and he has appealed from the order and judgment.
The first error assigned is the refusal of the trial judge to grant a motion to set aside the information, which was upon two grounds: (1) That he had no preliminary examination before the information was filed; and (2) that the information was not filed at the next term of the district court after his commitment. The motion was properly denied. The claim that there was no preliminary examination is based upon an alleged loss of jurisdiction by the examining magistrate. It is shown that on September 22, 1904, the state’s attorney applied for a continuance because of the absence of a material witness, and the justice granted the request over defendant’s objection, and adjourned the examination until September 26th, a period of four days. The 25th was Sunday. The examination was continued on the 26th, over defendant’s objection to the jurisdiction, and resulted in the defendant’s being committed for trial. Counsel for defendant claims that the justice lost jurisdiction by the adjournment, and that the subsequent examination was therefore a nullity. He relies upon section 7954, Rev. Codes 1899, which reads as follows: “The examination must be completed at one session unless the magistrate, -for good cause, adjourns it. The adjournment cannot be for more than three days at each time, nor more than fifteen days in all, unless by consent, or on the motion of the defendant.” The adjournment was for four days, if Sunday, the 25th, be included, and in that event was beyond the limit fixed by the statute. It is not necessary to determine -whether Sunday should be excluded; for, -assuming that the adjournment was beyond the statutory limit, still it does not follow that the justice lost jurisdiction to proceed upon the adjourned -day. No prejudice is shown to have resulted to the defendant because of the adjournment, neither did he lose any substantial right. It was, in
The second ground of the motion, the alleged failure to file an information at the next regular term of court succeeding his commitment, is not one of those enumerated by section 8082, Rev. Codes 1899, as grounds upon which an information may be set aside. In State v. Tough, 12 N. D. 425, 96 N. W. 1025, we held that the grounds enumerated 'by this section are exclusive of all others, and so the courts generally hold under similar statutes. See cases cited in opinion, page 429 of 12 N. D., page 1026 of 96 N. W. The several grounds named in the statute go to the validity of the information. The defendant’s objection goes, not to its validity, but to an alleged failure on the part of the state to proceed with the prosecution within the time required by statute. The remedy of one so aggrieved is not by an attack upoñ the information.
Following the denial of the -above motion, counsel for defendant moved to dismiss the prosecution and discharge the defendant upon the second ground urged in his attack upon the information, to wit, that no information was filed against him at the next regular term- of court succeeding his commitment. This motion was also denied, and the ruling is assigned as error. In our opinion no error was committed. The motion is based upon section 8497, Rev. Codes 1899, which provides that “the court, unless good cause to the contrary is shown, must -order the prosecution to be dismissed: * * * (1) When a person has been held to-answer for
Counsel for appellant also assigns error upon the court’s action in limiting his cross-examination of the prosecuting witness Perry. We have examined the record upon this point and find no abuse of discretion. An opportunity to cross-examine is a matter of right, but the latitude and extent of the cross-examination rests largely in the discretion of the presiding judge, and he may place “a reasonable limit upon the time which shall be allowed for the examination or cross-examination of a witness.” 1 Thompson on Trials, section 352, 8 Enc. Pl. & Pr. 110, and cases cited; Hamilton v. Miller (Kan.) 26 Pac. 1030; State v. Brown, 100 Iowa, 50, 69
Error is assigned upon the failure to instruct as to circumstantial evidence. In this no error was committed. The state’s case did not rest entirely upon 'circumstantial' evidence. The main facts were attested by eye witnesses. It is only when a conviction is sought upon circumstantial evidence alone that the trial court is required to charge the law relating thereto. Barnards v. State, 88 Tenn. 183, 235, 12 S. W. 431; State v. Donnelly, 130 Mo. 642, 649, 32 S. W. 1124; State v. Robinson, 117 Mo. 663, 23 S. W. 1066 ; Cotton v. State, 87 Ala. 75, 6 South. 396 ; Weathersby v. State, 29 Tex. App. 279, 309, 15 S. W. 823; Hays v. State, 30 Tex. App. 404, 17 S. W. 940; Baldwin v. State, 31 Tex. Cr. R. 589, 21 S. W. 679; Adams v. State, 34 Tex. Cr. R. 470, 31 S. W. 372; Crews v. State, 34.Tex. Cr. R. 533, 543, 31 S. W. 373.
Defendant also complains of the refusal to give the following instruction: “In this case the state relies on what is known as circumstantial evidence to establish that the defendant was concerned in, or aided and abetted, the commission of the crime of larceny, if you find beyond a reasonable doubt that such crime was committed ; and while circumstantial evidence is in its nature liable to produce the highest degree of moral certainty, yet experience and authority both admonish us that it is a species of evidence in the application of which the utmost caution and vigilance should be used.” The request was properly refused, and for two reasons: First, it erroneously assumed that the case was one purely of circumstantial evidence; and, second, it discredited such evidence as matter of law. It is well settled that there is no legal distinction, so far as the weight and effect to be given it is concerned, between direct and circumstantial evidence. State v. Rome, 64 Conn. 329, 30 Atl. 57; Hickory v. United States, 151 U. S. 303, 14 Sup. Ct. 334, 38 L. Ed. 170; Brown v. State, 23 Tex. 195; People v. Morrow,
There are five further assignments relating to the instructions, which require only a passing reference. As to three of them it is sufficient to say that we find -that the charge given, when read as a whole, as it must be, is not open to the objections urged against it. The other two assignments relate to the court’s refusal to instruct that the evidence was -insufficient to sustain certain allegations of the information. Just what these allegations were the record does not disclose. The information is not set out in the abstract. These questions are not, therefore, properly reviewable. But, assuming that the facts are as stated in appellant’s brief, we are agreed that the assignments are without merit.
The defendant also urged as ground for new trial that the verdict is “clearly against the evidence.” Rev. Codes 1899, section 8271. In our opinion the trial judge did not abuse his discretion in denying the motion. It appears from recitals in the abstract that the information charged the defendant jointly with Bradford and Hicks with the crime of larceny from the person, in the nighttime, of $25, the property of J. E. Perry.” This defendant demanded and was accorded a separate trial. The theory of the state was and is that the three defendants were confederates. The evidence shows that the larceny was committed on a west-bound Great Northern passenger train between Larimore and Niagara, in Grand Forks county. The train was crowded when it left Grand Forks, many persons being unable to find seats, and among them was the prosecuting witness, Perry, who was on his way from Michigan to Montana. Hicks secured a seat in the .smoking car and asked- Perry to occupy it with him. A few minutes later Bradford joined them and Hicks and Bradford engaged in conversation; later in matching pennies, half-dollars- and dollars. Hicks stated that he was a banker at Grand Rapids, Mich., and Bradford represented himself as the proprietor of a large stock farm in Kentucky. Finally Hicks asked Perry if he could change a $20 bill, and the latter, after some hesitation, produced a roll of bills, consisting of two $10 bills and a $5 bill, and1 while the -money was resting in his open hand both Hicks and Bradford grabbed for it. Bradford got it and started out of the car. Flicks at once grabbed Perry and detained -him, and during the time offered to -give him a check on a Great Falls bank in -lieu of the money which had' been taken. Perry finally
Finding no error in the record, the judgment and order appealed from must be affirmed, and it is so> ordered.